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[ { "docid": "23351332", "title": "", "text": "the single question here presented it is enough if the case is properly before us under either of these acts.” Since the Massachusetts court unquestionably had jurisdiction of the suit under the Jones Act, this decision in no way constitutes an approval of the Elliott or Batkiewicz decisions. Powers v. Cunard S. S. Co. Ltd., D.C.S.D.N.Y.1925, 32 F.2d 720 and The Saturnia, D.C.S.D.N.Y.1936, 1936 A.M.C. 469, are also referred to as supporting the view that the right of action granted by the Death on the High Seas Act may be enforced in a common-law court. But, in both of these cases the right of action asserted was created by foreign law. The court merely held that Section 4 of the Death on the High Seas Act which states that suit may be maintained in the federal courts of admiralty upon a right of action for death created by a foreign State without abatement in respect to the amount for which recovery is authorized, does not preclude a suit at law on the foreign right of action. This is a very different ques tion than whether suit may be brought at law on- the federal right of action created by Section 1 of the Act. This brief résumé of the decisions asserted to support the view that the right of action given by the Death on the High Seas Act may be maintained at law demonstrates that only the five decisions in the state courts of New York and three of the federal decisions are holdings to this effect. Of these eight decisions only two are predicated upon independent reasoning of the court. This reasoning, as has been noted, I do not find persuasive. My belief as to the unsoundness of these decisions is strengthened by the decision of Judge Weinfeld in Iafrate v. Compagnie Generale Transatlantique, D.C.S.D.N.Y. 1952, 106 F.Supp. 619, in which he reaches the same conclusion. It is noteworthy that Judge Weinfeld is a member of the United States District Court for the Southern District of New York where two of the contrary decisions were rendered. I hold" } ]

[ { "docid": "12713779", "title": "", "text": "in Noel v. Linea Aeropostal Venezolana, (D.C.S.D.N.Y.1956, 154 F.Supp. 162, at page 163, Cashin, J.), affirmed 2 Cir., 247 F.2d 677, in which he said: “Neither authority (Wyman v. Pan American Airways, Inc., 181 Misc. 963, 43 N.Y.S.2d 420, affirmed 267 App.Div. 947, 48 N.Y.S.2d 459, affirmed 293 N.Y. 878, 59 N.E.2d 785, certiorari denied 324 U.S. 882, 65 S.Ct. 1029, 89 L.Ed. 1432; Choy v. Pan American Airways Co., Inc., D.C.S.D.N.Y., 1941 A.M.C. 483), the language of the Statute nor the dictates of common sense sustain a holding that the fulfillment of the jurisdictional requirements of the Federal Death on the High Seas Act is to be governed by the determination of such an elusive fact as whether a person died above, on or in the sea.” In Higa v. Transocean Airlines, 9 Cir., 1956, 230 F.2d 780, the Ninth Circuit and in Noel v. Linea Aeropostal Vene-zolana, 2 Cir., 1957, 247 F.2d 677, this Circuit refrained from passing “on the question of whether the Act grants a right of action for deaths in the airspace” (Noel, supra, at page 680). This court there chose a narrower ground for decision and concluded “that any rights created by that Act are cognizable only in admiralty and hence the action was properly dismissed from the civil side” (Id. at page 680). The facts of the case now before the court make a direct ruling on the question appropriate. To give to passengers on ships protection of the Act and deny similar rights to passengers in the air would amount to unjustifiable and highly technical discrimination. We, therefore, now hold that the Death on the High Seas Act grants a right of action in admiralty for death caused by wrongful act, neglect or default occurring in the air space over the high seas and that the trial court properly heard the ease in admiralty. As to the second cause of action the jury’s verdict disposed of plaintiff’s claim on the merits. The only error relied upon by appellant is the exclusion of certain medical testimony. However, this exclusion was caused by appellant’s" }, { "docid": "20184655", "title": "", "text": "on the further ground, that the widow is not the proper party plaintiff since the suit must be brought by the personal representative of the decedent. With the consent of defendant’s counsel, the plaintiff, at the argument of the motion, cross-moved for leave to file an amended complaint in the name of the personal representatives of the decedent who had been appointed since the filing of the original complaint setting forth an additional cause of action based on the terms of the “Convention For The Unification of Certain Rules Relating to International Transportation By Air”, 49 Stat. Part 2, p. 3000 et seq., commonly called the “Warsaw Convention”. Assuming the complaint to be amended as requested, the plaintiff argues that the cause of action under the federal Death On The High Seas Act may be brought as a civil action and that the Warsaw Convention creates a separate cause of action which may be brought as a civil action. Considering first the question of the proper forum for an action based on the Death On The High Seas Act, the Court does not consider the argument of the plaintiff sound. It is true that authority can be found in this and other districts for the proposition that the statute makes available to a suit- or the-civil forum. See e. g. Choy v. Pan American Airways, Inc., D.C.S.D.N.Y. 1941 A.M.C. 483; Batkiewicz v. Seas Shipping Co., Inc., D.C.S.D.N.Y.1943, 53 F.Supp. 802; Sierra v. Pan American World Airways, Inc., D.C.P.R.1952, 107 F.Supp. 519. However, more recent cases are to the contrary. Iafrate v. Compagnie- Generale Transatlantique, D.C.S.D.N.Y.1952, 106 F.Supp. 619; Wilson v. Transocean Airlines, D.C.N.D.Cal. 1954, 121 F.Supp. 85; Higa v. Trans-ocean Airlines, D.C.Hawaii 1954, 124 F. Supp. 13, affirmed 9 Cir., 1955, 230 F.2d 780. The reasoning in the latter cases is that since no cause of action existed under the general maritime law for wrongful death on the high seas, The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, a statutory enactment was necessary to create such a cause of action. When the applicable statute utilized the words" }, { "docid": "20184656", "title": "", "text": "The High Seas Act, the Court does not consider the argument of the plaintiff sound. It is true that authority can be found in this and other districts for the proposition that the statute makes available to a suit- or the-civil forum. See e. g. Choy v. Pan American Airways, Inc., D.C.S.D.N.Y. 1941 A.M.C. 483; Batkiewicz v. Seas Shipping Co., Inc., D.C.S.D.N.Y.1943, 53 F.Supp. 802; Sierra v. Pan American World Airways, Inc., D.C.P.R.1952, 107 F.Supp. 519. However, more recent cases are to the contrary. Iafrate v. Compagnie- Generale Transatlantique, D.C.S.D.N.Y.1952, 106 F.Supp. 619; Wilson v. Transocean Airlines, D.C.N.D.Cal. 1954, 121 F.Supp. 85; Higa v. Trans-ocean Airlines, D.C.Hawaii 1954, 124 F. Supp. 13, affirmed 9 Cir., 1955, 230 F.2d 780. The reasoning in the latter cases is that since no cause of action existed under the general maritime law for wrongful death on the high seas, The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, a statutory enactment was necessary to create such a cause of action. When the applicable statute utilized the words “ * * * may maintain a suit * * * in admiralty * * the admiralty forum was made exclusive. With this reasoning the Court agrees. The question remains as to whether the Warsaw Convention creates a new cause of action and whether any such newly created cause of action may be brought as a civil action in the District Court. While there was at first some doubt as to whether the Convention was self-executing to any extent, Choy v. Pan American, supra, there is no doubt at this time that, at least insofar as the Convention creates a rebuttable presumption of liability upon the happening .of the accident, Article 17, and a limitation thereof except upon the showing of wilful misconduct, Article 25, that it is self-executing. Virtually all of the reported cases have not considered the question at issue, apparently because the application of the lex loci delicti, with the addition of the Convention presumption and limitation mentioned above, afforded the same rights and liabilities as if a separate cause of action" }, { "docid": "17397425", "title": "", "text": "of action. As one authority has stated, the purpose of the Convention was only “to effect a uniformity of procedure and remedies.” Orr, The Warsaw Convention, 31 Va.L. Rev. 423 (1945) ; see also Comment, Air Passenger Deaths, 41 Corn.L.Q. 243, 255-60 (1956); Fixel, The Law of Aviation, § 23 (1948). Plaintiffs, relying on a dictum in Judge Leibell’s opinion in Komlos, 111 F.Supp. at page 393, argue that where the law of the place of the injury provides no right of action or where there is no law of the place of injury the Warsaw Convention provides one. They then argue that the Federal Death on the High Seas Act does not grant them a right of action, for that does not apply to deaths in the airspace. We see no justification for such a reading of the Convention. The language of Article 17 does not indicate any difference between situations where the law of the place of injury does grant a right of action and where it does not. See Comment, 41 Corn.L.Q. at 256. Nor does the history of the Convention support this dictum. Thus, regardless of whether the Federal Death on the High Seas Act provides a remedy, Article 17 does not. 2. The Federal Death on the High Seas Act. Plaintiffs’ second count is under the Federal Death on the High Seas Act. They argue in the alternative that the Federal Death on the High Seas Act does grant them a right of action and that it may be brought on the civil side. See Choy v. Pan American Airways Co., D.C.S.D.N.Y., 1941 A.M.C. 483. We do not find it necessary to pass on the question of whether the Act grants a right of action for deaths in the airspace, for we conclude that any rights created by that Act are cognizable only in admiralty and hence the action was correctly dismissed from the civil side. Plaintiffs contend that the phrase in the statute, “may maintain a suit for damages * * * in admiralty,” means that a plaintiff may sue either at law or" }, { "docid": "23351324", "title": "", "text": "of a suit to recover damages for personal injuries in respect of such act, neglect, or default, the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this chapter for the recovery of the compensation provided in section 2 of this act.” If the Congress contemplated that suits enforcing the right of action given by the Death on the High Seas Act should be maintained in courts of law, there would have been no reason to limit the right of substitution granted in Section 5 of the Act to suits for personal injuries which were pending in the admiralty courts. But it is unnecessary to rely solely on the statutory language for support for the conclusion that the right of action granted by the Death on the High Seas Act may be maintained only in admiralty. Both the Committee reports of the 66th Congress which enacted the statute as well as the debate on the floor of the House make it clear that the framers of the Act intended to vest exclusive jurisdiction in the courts of admiralty. See Senate Report 216, House Report 674, 66th Congress; Vol. 59 Congressional Record, Part 5, pp. 4482-4486, 66th Congress. It is also significant that the earliest decisions ruling upon the question of the forum in which the right of action granted by the Act should be enforced stated categorically that the suit must be in admiralty. See Dall v. Cosulich Line, D.C.S.D.N.Y.1928, 1936 A.M.C. 359; Birks v. United Fruit Co., D.C.S.D.N.Y.1930, 48 F.2d 656; Echavarria v. Atlantic & Caribbean Steam Nav. Co., D.C.E.D.N.Y.1935, 10 F.Supp. 677; In re Rademaker’s Estate (The Mohawk), 1938, 166 Misc. 201, 2 N.Y.S.2d 309, 1938 A.M.C. 396. Indeed, the matter would seem too clear for question were it not for a line of cases which, beginning in 1938, some 18 years after the passage of the Act, have permitted suits under the Act at law. The first of these cases was Elliott v. Steinfeldt, 1938, 254 App.Div. 739, 4 N.Y.S.2d 9 in which the Appellate Division" }, { "docid": "14551051", "title": "", "text": "caused on a United States naval vessel outside state territorial jurisdiction, in admiralty. Furthermore, in a case of first impression, involving the important question here presented, “ * * * Had the court followed Admiralty Rule 46-1/2 (28 IJ.S.C.A. following section 723), the mental process of making findings quite likely would have suggested to it the distinction between a cause of action based on the British statute, concerning which its decision might have permitted a suit otherwise than in the limitation proceed- . and a muse of aciion Mng /rom the Unüed Smes sUtute> the writing of an opinion in accordance with the long-established practice in admiralty in this district would have concentrated the mind of the court on the terms of the United States death statute involved, with its provision that whatever rights the foreign law may con-. fer are to be ‘maintained in an appropriate action in admiralty.’ ” (Emphasis added.) See in accord, Wilson v. Transocean Airlines, D.C.N.D.Cal.1954, 121 F.Supp. 85; Iafrate v. Compagnie Generale Transatlantique, D.C.S.D.N.Y.1952, 106 F.Supp. 619. Our disposition of this case makes unnecessary the determination whether the High Seas Act applies to airplanes which are not in; any way water navigating vessels. We affirm the judgment, since the case is clearly one of the class described in the following language, 223 U.S. at page 490, 32 S.Ct. at page 206, of the Galveston, H. & S. A. R. Co. case, supra, “Where the statute creating the right provides an exclusive remedy, to be enforced in a particular way, or before a special tribunal, the aggrieved party will be left to the remedy given by the statute which created the right.” . Revised Laws of Hawaii, § 10486. . Of this chango the reviser’s notes on the section state: “The ‘saving to suitors’ clause in said sections 41(3) and 371(3) was changed by substituting the words ‘any other remedy to which he is otherwise entitled’ for the words ‘the right of a common-law remedy where the common law is competent to give it.’ The substituted language is simpler and more expressive of the original" }, { "docid": "14551050", "title": "", "text": "torts are customarily in the admiralty jurisdiction, warranted his suing in admiralty. Here the case is the exact reverse. There is no question of the constitutionality of the Act. The High Seas statute provides that the newly created maritime right is to be considered in the federal courts in which such torts are customarily considered. The case tends to sustain the appellee's contention. The following district court cases hold an action under the Death on the High Seas Act may be brought in a civil suit and that the remedy is not confined to admiralty. Sierra v. Pan American World Airways, D.C.D.Puerto Rico, 1952, 107 F.Supp. 519; Batkiewicz v. Seas Shipping Co., D.C.S.D.N.Y.1943, 53 F.Supp. 802; Choy v. Pan-American Airways, D.C.S.D.N.Y.1941, 1941 A.M. C. 483. The arguments contained in these cases have been analyzed above. We agree with what we said in The Silverpalm, 9 Cir., 1935, 79 F.2d 598, 600: wMch at that stage in the iitigation, at any rate, should have been confined to the limitation proceeding and, in any event, for death caused on a United States naval vessel outside state territorial jurisdiction, in admiralty. Furthermore, in a case of first impression, involving the important question here presented, “ * * * Had the court followed Admiralty Rule 46-1/2 (28 IJ.S.C.A. following section 723), the mental process of making findings quite likely would have suggested to it the distinction between a cause of action based on the British statute, concerning which its decision might have permitted a suit otherwise than in the limitation proceed- . and a muse of aciion Mng /rom the Unüed Smes sUtute> the writing of an opinion in accordance with the long-established practice in admiralty in this district would have concentrated the mind of the court on the terms of the United States death statute involved, with its provision that whatever rights the foreign law may con-. fer are to be ‘maintained in an appropriate action in admiralty.’ ” (Emphasis added.) See in accord, Wilson v. Transocean Airlines, D.C.N.D.Cal.1954, 121 F.Supp. 85; Iafrate v. Compagnie Generale Transatlantique, D.C.S.D.N.Y.1952, 106 F.Supp. 619. Our disposition" }, { "docid": "20801343", "title": "", "text": "this issue, the Court employed the mechanics of the “locality” rule and concluded that if the decedent had been merely injured rather than killed, his suit would have fallen within the admiralty jurisdiction, since: “In applying the ‘locality’ test for admiralty jurisdiction the tort is deemed to occur, not where the wrongful act or omission had its inception, but where the impact of the act or omission produces such injury as to give rise to a cause of action.” [Citing The Plymouth, 70 U.S. (3 Wall.) 20, 18 L.Ed. 125 (1865).] 121 F.Supp. at 92. However, the later Ninth Circuit case of Higa v. Transocean Airlines, 230 F.2d 780 (1955), apparently arising out of the same airplane crash as Wilson, indicates that this additional discussion of locality was probably unnecessary to establish admiralty jurisdiction. For the Circuit Court in Higa, after concluding that the legislative history required that actions based on the Death on the High Seas Act be brought only in the federal courts sitting in admiralty, went on to observe: “Our disposition of this case makes unnecessary the determination whether the High Seas Act applies to airplanes which are not in any way water navigating vessels.” 230 F.2d at 786. In any event, the confusion generated by plane crashes into navigable waters has now been largely resolved by the recent Supreme Court case of Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454, 1972, wherein the Death on the High Seas Act was explicitly found to cover air crashes such as gave rise to the Transocean cases, above. After concluding that the “locality plus” test must be applied to' most air crashes into navigable waters, Justice Stewart added the following footnote: “Of course, under the Death on the High Seas Act, a wrongful death action arising out of an airplane crash on the high seas beyond a marine league from the shore of a State may clearly be brought in a federal admiralty court.” 409 U.S. 249, at 271, 93 S.Ct. 493, at 506, n. 20. Although the other Ninth Circuit" }, { "docid": "23351321", "title": "", "text": "admiralty, by the decedent’s personal representative. On its face, the language of the Death on the High Seas Act seems quite clearly to grant exclusive jurisdiction of actions under the Act to courts of admiralty. Section 1 of the Act provides as follows: “Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.” Thus, in a single sentence the statute both creates a right of action, which did not previously exist, and stipulates that the right is to be enforced in the federal courts of admiralty. The provision that enforcement is to be in admiralty is a limitation on the right itself. Plaintiff urges that the use of the permissive expression “may maintain a suit * * * in admiralty” is indicative of Congressional intent to offer the admiralty forum rather than to withhold jurisdiction from the courts of law. Such intent, plaintiff asserts, would be consistent with the general federal legislation saving to suitors the privilege of availing themselves of common-law remedies for the enforcement of maritime rights. But, this construction of Section 1 overlooks the fact that the word “may” is not employed to designate a permissible forum but to grant a right of action. The statute says that the personal representative of the decedent “may maintain a suit”. By these words the statute gives a right of action where none existed before. The use of a mandatory word such as “shall” in this context would have been entirely inappropriate. The remainder of the sentence designating the forum is a qualification of the permission to maintain a suit. Moreover, the construction offered" }, { "docid": "17397426", "title": "", "text": "at 256. Nor does the history of the Convention support this dictum. Thus, regardless of whether the Federal Death on the High Seas Act provides a remedy, Article 17 does not. 2. The Federal Death on the High Seas Act. Plaintiffs’ second count is under the Federal Death on the High Seas Act. They argue in the alternative that the Federal Death on the High Seas Act does grant them a right of action and that it may be brought on the civil side. See Choy v. Pan American Airways Co., D.C.S.D.N.Y., 1941 A.M.C. 483. We do not find it necessary to pass on the question of whether the Act grants a right of action for deaths in the airspace, for we conclude that any rights created by that Act are cognizable only in admiralty and hence the action was correctly dismissed from the civil side. Plaintiffs contend that the phrase in the statute, “may maintain a suit for damages * * * in admiralty,” means that a plaintiff may sue either at law or in admiralty. But the language and legislative history make it very clear that the permissive element relates solely to the grant of the right and not to the forum. Whereas before the Act a party could not sue under federal law for death on the high seas at all, now he may. Higa v. Transocean Airlines, 9 Cir., 1955, 230 F.2d 780; Wilson v. Transocean Airlines, D.C.N.D.Cal.1954, 121 F.Supp. 85; Iafrate v. Compagnie Generale Transatlantique, D.C.1952, 106 F.Supp. 619; see Comment, 41 Corn.L.Q. at 248-50. Other sections of the Act support this conclusion. Thus, the survival section refers to “pendency in a court of admiralty,” and if suit could be maintained in other forums, there would be no reason to restrict the survival provision in this manner. Moreover, the legislative history also supports this reading. See 59 Cong.Rec. 4482-84 (1920). Whatever the merits and demerits of the admiralty forum, see Comment, 55 Col.L.Rev. 907, 912-16 (1955), the statutory language and the legislative history are clear. To summarize: the first count fails to state a cause" }, { "docid": "20801342", "title": "", "text": "as two District Courts, McGuire v. City of New York, 192 F.Supp. 866 (S.D.N.Y.1961) and Smith v. Guerrant, 290 F.Supp. 111, 113 (S.D.Tex., Galveston Div., 1968). The plaintiff correctly points out that these decisions are of persuasive value only and cites various decisions of the Ninth Circuit which she believes require the application of the “strict locality” test of admiralty tort jurisdiction in this case. The first of these cases is Wilson v. Transocean Airlines, 121 F.Supp. 85 (N.D.Cal.1954), a wrongful death action arising from the crash of an airliner into the sea some 325 miles east of Wake Island. The question presented was whether the Death on the High Seas Act, 46 U.S.C. §§ 761-767, was the plaintiff's exclusive remedy for wrongful death. District Judge Goodman held that it was, relying primarily on the legislative history of the Act itself. 121 F.Supp. at 87-91. It is true that the further question was raised whether the High Seas Act applied to airplanes which are flying over the ocean rather than navigating on it. In resolving this issue, the Court employed the mechanics of the “locality” rule and concluded that if the decedent had been merely injured rather than killed, his suit would have fallen within the admiralty jurisdiction, since: “In applying the ‘locality’ test for admiralty jurisdiction the tort is deemed to occur, not where the wrongful act or omission had its inception, but where the impact of the act or omission produces such injury as to give rise to a cause of action.” [Citing The Plymouth, 70 U.S. (3 Wall.) 20, 18 L.Ed. 125 (1865).] 121 F.Supp. at 92. However, the later Ninth Circuit case of Higa v. Transocean Airlines, 230 F.2d 780 (1955), apparently arising out of the same airplane crash as Wilson, indicates that this additional discussion of locality was probably unnecessary to establish admiralty jurisdiction. For the Circuit Court in Higa, after concluding that the legislative history required that actions based on the Death on the High Seas Act be brought only in the federal courts sitting in admiralty, went on to observe: “Our disposition of" }, { "docid": "11659214", "title": "", "text": "see, e.g., The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264 (1907), no federal remedy existed for deaths on the high seas. In 1920, Congress acted to fill this gap by passing the Death on the High Seas Act. DOHSA creates a remedy in admiralty for wrongful deaths more than three miles from shore, i.e., outside state territorial waters. 46 U.S.C. § 761. The act determines a number of details with respect to the cause of action it creates. It limits the class of beneficiaries, 46 U.S.C. § 761, allows suits filed by the victim of an accident to continue if the victim dies of his injuries while his suit is pending, 46 U.S.C. § 765, provides that contributory negligence will not bar recovery, 46 U.S.C. § 766, and limits recoverable damages to pecuniary loss, 46 U.S.C. § 762. Prior to 1970, federal courts construing DOHSA held that suits under the Act could be maintained only in admiralty and without juries. In Higa v. Transocean Airlines, 230 F.2d 780 (9th Cir.), cert. dismissed, 352 U.S. 802, 77 S.Ct. 20, 1 L.Ed.2d 37 (1956), the Ninth Circuit decided that the statutory phrase, “may maintain a suit for damages in the district courts of the United States, in admiralty ...,” ruled out jury trial even if diversity of citizenship existed. In rejecting the contention that the “saving to suiters” clause preserved the right to sue under diversity jurisdiction and thereby obtain a jury trial, the court noted “that the High Seas Act deprived no state or federal court of a then existing right.” 230 F.2d at 782. The court relied also on a colloquy on the floor of the House in which it was said that “this proceeding will be in admiralty and that there will be no jury.” 230 F.2d at 784 (quoting 59 Cong.Rec. at 4482). Between 1920 and 1970, deaths on the high seas gave rise to suits under DOHSA, and those occurring in territorial waters were governed by the various states’ wrongful death statutes. This structure resulted in a captious lack of uniformity. Then the Supreme" }, { "docid": "12925339", "title": "", "text": "of those who found a grave in the chilly waters of the great deep would not have gone out of court empty handed.” 59 Cong.Rec. 4485-4486 (66th Congress, 2d Sess. 1920) The statutory language and its legislative history make clear the purpose of the Act in seeking a uniform, effective remedy where virtually none existed before, and compels the conclusion that jurisdiction under the Act for deaths occurring on the high seas was to be vested exclusively in the district court on the admiralty side. In Wilson v. Transocean Airlines, 121 F.Supp. 85, 91 (N.D.Cal.1954), after extensively reciting the legislative history of the Act, the court said at page 90: “The Death on the High Seas Act was prompted, in large part, by the desire to put an end to the uncertainties attending the application of state statutes to deaths on the high seas. Many of these uncertainties would remain to plague both coui'ts and litigants if the state statutes could still be availed of by suitors. In addition, since the Death on the High Seas Act was drawn with the purpose to afford an exclusive, uniform federal right of action for death on the high seas, the right of action which it created is not appropriate to serve as a mere supplement to state-created rights of action on the high seas.” This position is supported by other Federal courts. In Iafrate v. Compagnie Generale Transatlantique, 106 F.Supp. 619 (S.D.N.Y.1952), Judge Weinfeld stated at page 621: “It would, therefore, appear from the language chosen by Congress that the Admiralty Courts have exclusive jurisdiction of such actions. To hold otherwise would mean that the references made to actions and suits in admiralty in the sections quoted are surplusage. It is a basic rule of statutory interpretation that the legislature is presumed to have used no superfluous words and that significance should ordinarily be given to every word in a statute.” In accord with the view of exclusive jurisdiction of the admiralty side of the district court over suits based on the Death on the High Seas Act, see; also, D’Aleman v." }, { "docid": "12925340", "title": "", "text": "Seas Act was drawn with the purpose to afford an exclusive, uniform federal right of action for death on the high seas, the right of action which it created is not appropriate to serve as a mere supplement to state-created rights of action on the high seas.” This position is supported by other Federal courts. In Iafrate v. Compagnie Generale Transatlantique, 106 F.Supp. 619 (S.D.N.Y.1952), Judge Weinfeld stated at page 621: “It would, therefore, appear from the language chosen by Congress that the Admiralty Courts have exclusive jurisdiction of such actions. To hold otherwise would mean that the references made to actions and suits in admiralty in the sections quoted are surplusage. It is a basic rule of statutory interpretation that the legislature is presumed to have used no superfluous words and that significance should ordinarily be given to every word in a statute.” In accord with the view of exclusive jurisdiction of the admiralty side of the district court over suits based on the Death on the High Seas Act, see; also, D’Aleman v. Pan American World Airways, 259 F.2d 493 (2d Cir. 1958); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677, 66 A.L.R.2d 997 (2d Cir. 1957), cert, denied 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); Higa v. Transocean Airlines, 230 F.2d 780 (9th Cir. 1955), cert. dismissed 352 U.S. 802, 77 S.Ct. 20, 1 L.Ed.2d 37. I Edelman, Maritime Injury and Death, page 235 (1960 Ed.). This court therefore holds that jurisdiction of actions based upon the Death on the High Seas Act is vested exclusively in the admiralty side of the district courts. Since the state court had no jurisdiction of the action, this court cannot acquire any by virtue of removal even though the action could have been instituted here originally. Inasmuch as the action would be dismissed without prejudice to the filing of a libel in admiralty, and since the statute of limitations has not run to prevent the filing of such a new action, this court deems it pointless to go through meaningless acts. Accord ingly, this case is transferred" }, { "docid": "116975", "title": "", "text": "DOHSA and thus in the federal courts. The Court is cognizant that this theory has been recognized by other courts. E. g., Barbe v. Drummond, 507 F.2d 794, 801 n. 10 (1st Cir. 1974); Higa v. Transocean Airlines, 230 F.2d 780, 784-86 (9th Cir. 1955); Jennings v. Goodyear Aircraft Corp., 227 F.Supp. 246, 247-48 (D.Del. 1964); Wilson v. Transocean Airlines, 121 F.Supp. 85 (N.D.Cal.1954). In Wilson, the court highlighted the confusion in the law prior to the enactment of DOHSA in applying state wrongful death statutes when the death occurred on the high seas. 121 F.Supp. at 88. That court analyzed the legislative history of DOHSA, 121 F.Supp. at 89-90 and especially Representative Mann’s amendment to Section 7 of the Act, which left that portion as it reads today: “The provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter.” The court reasoned, albeit the language of the Mann Amendment, that the desire to alleviate the confusion in applying various state statutes was utmost in Congress’ mind and thus the clear purpose in enacting DOHSA was to “afford an exclusive, uniform federal right of action for death on the high seas [and] . . . not as a mere supplement to state-created rights of action on the high seas.” 121 F.Supp. at 90. As to the viability of the Mann Amendment, the court concluded that “[a]n ambiguous and ill-considered amendment to the bill, which became the Act, is not sufficient justification for reaching a contrary conclusion at this late date.” 121 F.Supp. at 91. Commentators have spoken on the issue and some, likewise, have concluded that DOHSA is the exclusive remedy when a death occurs on the high seas. There is substantial, and in the Court’s judgment, more persuasive authority as espoused by the plaintiffs which requires remanding these cases to the respective state courts. In Lowe v. Trans World Airlines, Inc., 396 F.Supp. 9 (S.D.N.Y.1975), the plaintiffs essentially contended that the defendants were negligent in allowing a bomb to be placed in the luggage and put on" }, { "docid": "116977", "title": "", "text": "board the plane, causing the plane to explode and crash over the high seas. The defendants had the case removed to federal court, as has been done in the instant case, asserting that the federal courts had original and exclusive jurisdiction under DOH-SA. The court, while recognizing Wilson v. Transocean Airlines, supra, and its progeny, was unpersuaded that DOHSA was the exclusive remedy when a death occurred on the high seas. “We may assume that the Congress had the power to sweep all such matters, if brought in any American forum, within the exclusive jurisdiction created by DOHSA. But it would take a demonstration not yet known to this court to persuade that there was any purpose to make such a drastic change in 1920.” 396 F.Supp. at 12. This Court is likewise so convinced, despite the factual differences between Lowe and the instant case. In Safir v. Compagnie Generate Transatlantique, 241 F.Supp. 501 (E.D.N.Y.1965), it was stated that: [i]f the conclusion in Devlin v. The Flying Tiger Lines, [220 F.Supp. 924 (S.D.N.Y. 1963)] . . . and in Jennings v. Goodyear Aircraft Corporation, [227 F.Supp. 246 (D.Del.1964)], is that the Death on the High Seas Act swept away all pre-existing state remedies and confined all wrongful death suitors to admiralty claims in the federal court, . and in the Federal Court or nowhere, then the conclusion appears, similarly, to deny meaning to Section 7 of the Act and has no affirmative support in the modest language of the Act, which simply grants an admiralty jurisdiction and regulates it. 241 F.Supp. at 508-09. See Hammill v. Olympic Airways, S. A., 398 F.Supp. 829, 836-37 (D.D.C.1975) (citing Moragne v. States Marine Lines, Inc., 398 U.S. 375, 400 n. 14, 90 S.Ct. 1772,1787 n. 14, 26 L.Ed.2d 339 (1970)). Thus, with due deference to the court in Wilson v. Transocean Airlines, supra, there is a divergence of views as to the meaning and interpretations of DOHSA, given its legislative history. The Court finds the studies of the legislative history are not helpful in interpreting DOHSA. The wording of the statute is reasonably" }, { "docid": "17397427", "title": "", "text": "in admiralty. But the language and legislative history make it very clear that the permissive element relates solely to the grant of the right and not to the forum. Whereas before the Act a party could not sue under federal law for death on the high seas at all, now he may. Higa v. Transocean Airlines, 9 Cir., 1955, 230 F.2d 780; Wilson v. Transocean Airlines, D.C.N.D.Cal.1954, 121 F.Supp. 85; Iafrate v. Compagnie Generale Transatlantique, D.C.1952, 106 F.Supp. 619; see Comment, 41 Corn.L.Q. at 248-50. Other sections of the Act support this conclusion. Thus, the survival section refers to “pendency in a court of admiralty,” and if suit could be maintained in other forums, there would be no reason to restrict the survival provision in this manner. Moreover, the legislative history also supports this reading. See 59 Cong.Rec. 4482-84 (1920). Whatever the merits and demerits of the admiralty forum, see Comment, 55 Col.L.Rev. 907, 912-16 (1955), the statutory language and the legislative history are clear. To summarize: the first count fails to state a cause of action under New York law; the second count, under the Federal Death on the High Seas Act, cannot be brought on the civil side of the District Court; the third count fails to state a cause of action as the Warsaw Convention created no right of action. Accordingly we affirm the dismissal of the complaint but without prejudice to plaintiff’s right to transfer the case to the admiralty side of the court for adjudication of the second count of the amended complaint. We express no opinion as to whether the Death on the High Seas Act grants a right of action in admiralty for death in the airspace. . Article 17 “The carrier shall be liable for damages sustained in the event of the death or -wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” . As a matter of fact, New" }, { "docid": "23351322", "title": "", "text": "enforcement is to be in admiralty is a limitation on the right itself. Plaintiff urges that the use of the permissive expression “may maintain a suit * * * in admiralty” is indicative of Congressional intent to offer the admiralty forum rather than to withhold jurisdiction from the courts of law. Such intent, plaintiff asserts, would be consistent with the general federal legislation saving to suitors the privilege of availing themselves of common-law remedies for the enforcement of maritime rights. But, this construction of Section 1 overlooks the fact that the word “may” is not employed to designate a permissible forum but to grant a right of action. The statute says that the personal representative of the decedent “may maintain a suit”. By these words the statute gives a right of action where none existed before. The use of a mandatory word such as “shall” in this context would have been entirely inappropriate. The remainder of the sentence designating the forum is a qualification of the permission to maintain a suit. Moreover, the construction offered by plaintiff would render the words “in admiralty” mere surplusage. Yet, as plaintiff, herself, notes, “no rule of statutory construction has been more definitely stated or more often repeated than the cardinal rule that significance and effect shall, if possible, be accorded every word in a statute.” No express permission would have been necessary merely to open the courts of admiralty for the enforcement of the maritime right created by the statute. A suit to enforce a maritime right is a case within the admiralty jurisdiction. The District Courts of the United States have original jurisdiction of “any civil case of admiralty or maritime jurisdiction”. 28 U.S.C. § 1333. Other language of the Death on the High Seas Act is also persuasive that suits under the Act are exclusively within the jurisdiction of the admiralty courts. Section 5 of the Act provides that: “If a person die as the result of such wrongful act, neglect, or default as is mentioned in section 1 during the pendency in a court of admiralty of the United States" }, { "docid": "12538396", "title": "", "text": "recognized and enforced by Admiralty courts in claims arising from torts on the high seas. The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264 (1907). With the passage of the Death on the High Seas Act, it is pertinent to inquire whether state statutes allowing for recovery for wrongful death are pre-empted by the Act. The issue is a novel one for this Court, and the United States Supreme Court has made no pronouncement in this regard. The legislative history indicates that when Congress passed the Death on the High Seas Act it intended the remedy it provided to be an exclusive one. In Higa v. Transocean Airlines, 9 Cir., 1955, 230 F.2d 780, 783, 784, the Court set forth the following colloquy which occurred during the debate in the House of Representatives: “ ‘Mr. Igoe. Does not the gentleman think that he should inform the gentleman from Ohio (Mr. Ricketts) that this proceeding will be in admiralty and that there will be no jury, so that no Member of the House may have any misunderstanding about it? That question was thrashed out and it was decided best not to incorporate into this bill a jury trial because of the difficulties in admiralty proceedings.’ (Page 4482. Emphasis added.) “ ‘Mr. Moore of Virginia. * * * The purpose of this bill, as I understand it, is to give exclusive jurisdiction to the admiralty courts where the accident occurs on the high seas. “ ‘Mr. Volstead. That is it.’ (Page 4483.) Congressional Record, Volume 59, Part V.” The Ninth Circuit concluded, “Construing the Act’s words, if Higa’s diversity proceeding at common law were permitted by the High Seas Act it would make superfluous its words ‘in admiralty.’ ” Appellants call our attention to several federal district court decisions which give effect to state wrongful death statutes in addition to remedies under the Death on the High Seas Act. However, there are other federal district courts whose holdings are to the contrary. The two United States Supreme Court cases cited by appellants, Just v. Chambers, 312 U.S. 383, 61 S.Ct." }, { "docid": "15635035", "title": "", "text": "WILLIAM F. SMITH, District Judge. This is a suit in admiralty in which the personal representatives of the decedent, as libellants, assert a claim for damages under Section 1 of the Death .on the High Seas Act, 46 U.S.C.A. § 761 (First Cause of Action). The matter is before the Court at this time on the motion of the respondent, consistent with exceptions filed herein, to dismiss the libel on the ground that it fails to “state facts sufficient to constitute” a cause of action. The question presented for determination is a novel one in the field of aviation law. The pertinent provisions of the section under which the claim for damages is here made reads as follows: “Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, * * *, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.” This statute was enacted prior to the advent of international commercial air travel but has nevertheless been held applicable where, as here, death has been proximately caused by aircraft accidents in the airspace over the high seas. See the well-reasoned opinion of Judge Good man in the case of Wilson v. Transocean Airlines, D.C., 121 F.Supp. 85; see also Higa v. Transocean Airlines, D.C., 124 F.Supp. 13; but see Noel v. Linea Aeropostal Venezolana, 2 Cir., 247 F.2d 677, 680, certiorari denied 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262, a companion case in which the question as to the apr plieability of the statute was not decided. The essential facts, as pleaded in the libel, may be briefly summarized as ■follows: first, the decedent engaged passage and was ultimately a passenger on an aircraft of Venezuelan registry, ■owned and operated by Linea Áeropostal Venezolana; second," } ]

[ { "docid": "23456768", "title": "", "text": "a mandatory policy of lump sum payments based on the informal actions of Semet himself. Cf. Hackett v. Pension Benefit Guaranty Corp., 486 F.Supp. 1357, 1362-63 (D.Md.1980) (where written pension plan required employer’s consent to early retirement, that employer had routinely consented previously to such requests did not amount to waiver or modification of consent requirement). The previous decisions to make lump sum payments were made on a case-by-case basis and involved relatively small amounts. Between 1971 and 1979, eight employees, none of whom were stockholders in the firm, terminated their employment before reaching normal retirement age. With one exception, they each received a lump sum payment of their vested, accrued benefits. The amounts of the lump sum payments ranged from a low of a few hundred dollars to a high of about $5,000. Payment to one employee was deferred for a period of several months at her request. Such payments do not mandate a conclusion that a future Advisory Committee could not exercise the discretion vested in it by the plans to refuse a request for a lump sum payment if it determined that granting the request would be fiscally unwise. See Pompano v. Michael Schiavone & Sons, Inc., 680 F.2d 911 (2d Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 454, 74 L.Ed.2d 607 (1982). To hold otherwise would impair the flexibility necessary for proper financial management of such plans, a goal of Congress in holding ERISA fiduciaries to the “prudent man” standard. Joint Explanatory Statement of the Committee of Conference, H.Rep. No. 1280, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 5038, 5083-86; see Pompano, supra at 914. Semet next argues that the trustees improperly withheld his accrued benefits as a bargaining tool to gain a favorable settlement of issues involved in a suit brought by Semet in state court. On August 15, 1979, before making the request for the lump sum payment, Semet had sued the firm in state court seeking specific performance of an agreement which required the firm to purchase Semet’s stock. A second dispute involved the firm’s purchase of Semet’s" } ]

[ { "docid": "22156524", "title": "", "text": "& Ad.News 4639, 5038, 5054; H.R.Rep. No. 807, 93d Cong., 2d Sess. 60-61, reprinted in 1974 U.S.Code Cong. & Ad.News 4639, 4670, 4726. Rather, Congress believed that the “vesting of these ancillary benefits would seriously complicate the administration and increase the cost of plans whose primary function is to provide retirement income.” H.R.Rep. No. 807, 93d Cong., 2d Sess. 60, reprinted in 1974 U.S.Code Cong. & Ad.News 4890, 4935. An employer may change such benefits without violating ERISA. See Fentron Industries, Inc. v. National Shopmen Pension Fund, 674 F.2d 1300, 1306 (9th Cir.1982). But cf. Dependahl v. Falstaff Brewing Corp., 491 F.Supp. 1188, 1196-97 (E.D.Mo. 1980), modified, 653 F.2d 1208 (8th Cir.1981). Any right to payment of benefits before normal retirement age must be found in pertinent employment agreements. Fine v. Semet, 699 F.2d 1091, 1093 (11th Cir.1983). Consequently, National, in its capacity as an employer, did not violate ERI-SA. Also, National, in its capacity as a fiduciary, did not violate ERISA. Congress authorized an employer to administer its pension plan, and in the discharge of its duties with respect to the plan, the employ er must satisfy the exacting fiduciary standards imposed by ERISA. Congress, however, has not prohibited an employer who is also a fiduciary from exercising the right accorded other employers to renegotiate or amend, as the case may be, unfunded contingent benefits payable before normal retirement age. The changes, accomplished in this manner, are not to be reviewed by fiduciary standards. These conclusions are sustained by United Mine Workers Health and Retirement Funds v. Robinson, 455 U.S. 562, 573-76, 102 S.Ct. 1226, 1232-34, 71 L.Ed.2d 419 (1982). Robinson dealt with the fiduciary obligations imposed by § 302 of the Labor Management Relations Act, 29 U.S.C. § 186, on trustees of a fund for employee benefits. Nevertheless, it is pertinent because the high fiduciary standards exacted by both the Labor Act and ERISA are essentially the same. In Robinson, benefits created by the collective bargaining agreement were changed by renegotiation. The Court held that the changes were not to be reviewed under fiduciary standards, cautioning: “[W]hen neither" }, { "docid": "5783388", "title": "", "text": "and he failed to satisfy either of the other two conditions. Id. at 281. The plaintiff sued the company, arguing that the 70/80 retirement pension did not use the word “early” and so could not be described as an early retirement benefit. Id. The Hlinka court found the 70/80 retirement pension was an early retirement benefit because it provided for benefits prior to normal retirement age. Id. The court reviewed the following text from the legislative history of ERISA: The term “accrued benefit” refers to pension or retirement benefits and is not intended to apply to certain ancillary benefits .... To require the vesting of these ancillary benefits would seriously complicate the administration and increase the cost of plans whose primary function is to provide retirement income.... Also, the accrued benefit to which the vesting rules apply is not to include such items as the value of the right to receive benefits commencing at an age before normal retirement age.... Generally, an individual’s “accrued benefit” under a defined benefit plan is to be expressed in the form of an annual benefit commencing at normal retirement age. Id. at 284 n. 9 (quoting H.R.Rep. No. 807, 93d Cong., 2d Sess. 57, reprinted in 1974 U.S.Code & Admin.News 4639, 4670, 4726). Based on this legislative history, the court found ERISA offered no protection for early retirement benefits: ERISA does not obligate a plan to pay employee benefits before normal retirement age. ERISA specifically refers to norma], rather than early retirement in the context of accrued benefits.... [T]he district court properly determined that early retirement benefits are not accrued benefits under ERISA.” Id. at 284. See also Ashenbaugh, 854 F.2d at 1526; Bencivenga v. Western Pennsylvania Teamsters & Employers Pension Fund, 763 F.2d 574, 577 (3d Cir.1985) (early retirement benefits are not accrued benefits); Petrella v. NL Industries, Inc., 529 F.Supp. 1357 (D.N.J.1982) (early retirement benefits were not accrued or vested benefits and were not protected by ERISA against forfeiture). In the instant case, Lynch claims the annuity contracts should have covered early retirement benefits. However, as discussed previously, the case law of" }, { "docid": "9830163", "title": "", "text": "Sess. -, reprinted in 1974 U.S.Code, Cong. & Ad.News 4639, 4670, 4726. Am. Jur.2d Pension Reform Act § 73 (1975). See generally, Petrella v. NL Industries, 529 F.Supp. 1357, 1365-1366 (D.N.J.1982). These are ancillary benefits which may be amended or deleted without violating ERI-SA. Id. An examination of the eligibility requirements for 70/80 and rule of 65 retirement reveals they are conditional and in the nature of early retirement benefits and cannot be considered non-forfeitable or as an accrued benefit. Capocci v. General Motors Corp., 444 F.Supp. 1306, 1307-1308 (D.Hawaii 1978). Since the increased $400.00 per month pension payment is conditioned upon eligibility for 70/80 or rule of 65 retirement, it cannot be considered non-forfeitable. The Court has considered the potential applicability of 29 U.S.C. § 1056(a) and finds that it does not require a contrary mandate on the issues raised here. Under ERISA, “vesting” is a term that is tied to the term “accrued benefit.” To prevent any possible misunderstanding of the Court’s language in the previous paragraph, the proposed terms of sale with regard to 70/80 and rule of 65 retirement and the increased pension payments thereunder do not violate any minimum vesting standards under ERISA. This is because the terms of sale affecting pensions do not disturb the normal retirement benefit or the deferred vested pension benefit, See 29 U.S.C. § 1053, and since the terms of sale provide that all accrued benefits shall become vested upon transfer of ownership. See 26 U.S.C. § 411(d)(3). In short, Congress did not intend to impose upon a plan a requirement that any benefits be payable before reaching age 65 or the normal retirement age (65 in this case) under the plan. Riley v. MEBA Pension Trust, 452 F.Supp. 117, 120 (S.D.N.Y.) aff’d, 586 F.2d 968 (2nd Cir.1978). Plaintiffs in the Sutton litigation also allege Defendants have failed to provide sufficient information about the proposed amendments and thus allege a violation of ERISA. The Court is unable to find any provision of the Act that would mandate an employer to supply information regarding amendments before the amendments are effected. 29" }, { "docid": "23523818", "title": "", "text": "in connection with pension plans and left the employer with considerable flexibility with respect to welfare plans. See, e.g., S.Rep. No. 383, 93d Cong., 2d Sess. 18, reprinted in 1974 U.S.Code Cong. & Admin.News (“USCCAN”) 4639, 4890, 4904 (Congress sought to “keep[] costs within reasonable limits”); id. at 51, USCCAN at 4935 (requiring vesting of ancillary benefits “would seriously complicate the administration and increase the cost of plans whose primary function is to provide retirement income”). Thus, employee pension benefit plans are subject to elaborate accrual, vesting, and funding requirements. 29 U.S.C. §§ 1051-1085. On the other hand, welfare benefit plans, though subject to certain disclosure and fiduciary requirements, see id. §§ 1021-1031, 1101-1114, “are exempt from the more stringent ERISA requirements,” Young v. Standard Oil (Indiana), 849 F.2d 1039, 1045 (7th Cir.), cert. denied, 488 U.S. 981, 109 S.Ct. 529, 102 L.Ed.2d 561 (1988), and welfare benefits are thus unaccrued and nonvested. An unfunded severance plan is an “employee welfare benefit plan” under § 1002(1). Gilbert v. Burlington Industries, Inc., 765 F.2d 320, 325 (2d Cir.1985), aff'd mem., 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 558 (1986); accord Holland v. Burlington Industries, Inc., 772 F.2d 1140, 1145 (4th Cir.1985), aff'd mem., 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 559 (1986); Adams v. Avondale Industries, Inc., 905 F.2d 943, 947 (6th Cir.), cert. denied, — U.S. —, 111 S.Ct. 517, 112 L.Ed.2d 529 (1990); Scott v. Gulf Oil Corp. 754 F.2d 1499, 1503 (9th Cir.1985); see also Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 17-18, 107 S.Ct. 2211, 2220-21, 96 L.Ed.2d 1 (1987); Schwartz v. Newsweek, Inc., 827 F.2d 879, 881 n. 2 (2d Cir.1987) (“ Fort Halifax ... adopted [Gilbert v. Burlington Industries’] holding ... that an employer severance pay plan ..., which pays benefits on an ongoing basis to employees severed under certain circumstances, is an ‘employee welfare benefit plan’ under ERISA.”). Since severance benefits are welfare benefits and an employee’s interest in a welfare benefit plan is not vested, the employer has no continuing obligation to provide severance benefits; under ERISA, the employer" }, { "docid": "13137132", "title": "", "text": "later date of attaining age 65 or 10 years participation in the plan. 29 U.S.C. § 1002(24). Thus, in the context of “accrued benefits,” ERISA’s specific reference is to normal, rather than early, retirement. ERISA’s legislative history also indicates that the Act was not intended to assure the sanctity of early retirement expectations. The House Report states: The term “accrued benefit” refers to pension or retirement benefits and is not intended to apply to certain ancillary benefits ____ To require the vesting of these ancillary benefits would seriously complicate the administration and increase the cost of plans whose primary function is to provide retirement income____ Also, the accrued benefit to which the vesting rules apply is not to include such items as the value of the right to receive benefits commencing at an age before normal retirement age Generally, an individual’s “accrued benefit” under a defined benefit plan is to be expressed in the form of an annual benefit commencing at normal retirement age. H.R.Rep. No. 807, 93d Cong., 2d Sess. 57, reprinted in 1974 U.S.Code Cong. & Ad. News 4639, 4670, 4726. Legislative history, therefore, supports the literal language of the Act. Case law also supports the conclusion that early retirement benefits are not accrued benefits under ERISA. In Sutton v. Weirton Steel, 724 F.2d 406 (4th Cir.1983), a parent company, National Steel Corp., sold its Weirton Steel Division to a new company, Weirton Steel Corp., which was owned by the Division’s employees. National agreed to retain responsibility for normal retirement benefits accrued before the sale. In addition to normal retirement benefits, National had provided employees unfunded early retirement benefits in the event of shutdown or layoff. The sales agreement made it clear that the sale would not trigger payment of early retirement benefits. Employees who would have been eligible for early retirement sued, alleging that denial of the early retirement benefits violated ERISA. The Court of Appeals for the Fourth Circuit held that early retirement benefits were an ancillary benefit not protected by ERISA and that they could be altered, or even eliminated, without violating ERISA. Id. at" }, { "docid": "14883487", "title": "", "text": "interest of BSC was made by Hlinka’s manager, Robert Bouman. This decision was confirmed by Bouman’s supervisors. It was decided that Hlinka’s continued employment was in the interest of BSC \"because of his extensive and unique technological expertise related to the project to which he was assigned.” Defendant’s Interrogatories, Question 4(b), App. 74. . ERISA defines nonforfeitable as follows: ... when used with respect to a pension benefit or right means a claim obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant’s service, which is unconditional, and which is legally enforceable against the plan. 29 U.S.C. § 1002(19) (1982). . The term \"accrued benefit” refers to pension or retirement benefits and is not intended to apply to certain ancillary benefits_ To require the vesting of these ancillary benefits would seriously complicate the administration and increase the cost of plans whose primary function is to provide retirement income .... Also, the accrued benefit to which the vesting rules apply is not to include such items as the value of the right to receive benefits commencing at an age before normal retirement age.... Generally, an individual’s \"accrued benefit” under a defined benefit plan is to be expressed in the form of an annual benefit commencing at normal retirement age. H.R.Rep. No. 807, 93d Cong., 2d Sess. 57, reprinted in 1974 U.S.Code Cong. & Ad. News 4639, 4670, 4726. .In 1984, Congress amended ERISA by providing that \"[t]he accrued benefit of a participant under a plan may not be decreased by an amendment of the plan ... a plan amendment which has the effect of— (A) eliminating or reducing an early retirement benefit ... with respect to benefits attributable to service before the amendment shall be treated as reducing accrued benefits.” 29 U.S.C. § 1054(g)(1), (2) (Supp. II 1984) (amending 29 U.S.C. § 1054(g) (1982)). The legislative history explains that this amendment: generally protects the accrual of benefits with respect to participants who have met the requirements for a benefit as of the time a plan is" }, { "docid": "22846414", "title": "", "text": "Also, where the employee moves from one employer to another, the ancillary benefits (which are usually on a contingency basis) would often be provided by the new employer, whereas the new employer normally would not provide pension benefits based on service with the old employer. Also, the accrued benefit to which the vesting rules apply is not to include such items as the value of the right to receive benefits commencing at an age before normal retirement age, or so-called social security supplements which are commonly paid in the case of early retirement but then cease when the retiree attains the age at which he becomes entitled to receive current social security benefits, or any value in a plan’s joint and survivor annuity provisions to the extent that exceeds the value of what the participant would be entitled to receive under a single life annuity.” H.R.Rep. No. 807, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 4639, 4670, 4726 (emphasis supplied); see also H.Conf.Rep. No. 1280, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 5038, 5054. When taken out of context the emphasized phrase might appear to refer to early retirement benefits generally. However, the context demonstrates that Congress was not referring to unreduced early retirement benefits (which are not mentioned) but to benefits that are temporary or ancillary in nature (e.g., medical or life insurance, disability benefits and social security supplements), which a new employer would normally be expected to provide. Social security supplements which cease upon the employee’s reaching normal retirement age and the excess in value of joint and surviv- or annuity provisions over those of a single annuity differ entirely from unreduced retirement benefits to which an employee might become entitled under a retirement plan. The House Report therefore sheds no light on the meaning to be given to the term “accrued benefit” in the present context. Although the legislative history of ERI-SA as originally enacted is silent with respect to the issue of statutory construction before us, the history of the pertinent provisions of the 1984 amendment to ERISA," }, { "docid": "18624213", "title": "", "text": "of the plaintiff class, however, presented any evidence of reliance or prejudice or even attempted to verify that he did not receive the SPD. Because courts may not infer the existence of detrimental reliance or prejudice without some affirmative evidence to that effect, see Anderson, 836 F.2d at 1520, we hold that plaintiffs failed to carry their burden of proving that the 1986 SPD was insufficient to provide proper notice of the company’s right to modify or terminate the plan. IV. We recognize the real hardship that changes in employee benefit plans can visit upon individuals who have worked many years for a company. The enactment of ERISA, however, required Congress to strike a difficult balance between employee rights and available employer resources. In passing ERISA, Congress determined that requiring employers to provide vested employee welfare benefits “would seriously complicate the administration and increase the cost of plans whose primary function is to provide retirement income.” H.R.Rep. No. 807, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 4639, 4670, 4726; S.Rep. No. 383, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 4890, 4935. Congress accordingly rejected vesting requirements for welfare benefit plans and instead accorded employers the flexibility to make future modifications of such plans “as inflation, changes in medical practice and technology, and the costs of treatment dictate.” Owens, 984 F.2d at 398; see Moore, 856 F.2d at 492 (noting that “unstable variables prevent accurate predictions of future needs and costs” involved in employee welfare benefit plans). In this case, an employer provided a generous medical benefit plan to its active and retired employees in reliance on this well-established, statutory right to make future modifications to the plan, and even expressed its understanding of this modification right in its plan documents and SPDs. Were we to hold that the company was nonetheless bound by the original terms of the plan and prohibited from making any amendments, we would strip employers of the protection that Congress intended to provide them and accordingly “discourage employers from offering any insurance at all.” Owens, 984 F.2d at 398 n. 5 (citing" }, { "docid": "7412291", "title": "", "text": "provisions responded to a primary concern of Congress. Winer v. Edison Bros. Stores Pension Plan, 593 F.2d 307, 310 (8th Cir.1979). Employee welfare benefit plans were expressly excluded from these sections (§ 1051(1)), and no other provision restricted cancellation or change in such plans. Welfare plans are subject to the reporting and disclosure requirements of §§ 1021-1031, and the fiduciary responsibility standards of §§ 1101-1114. Blau v. Del Monte Corp., 748 F.2d 1348, 1352 (9th Cir.1984). While plaintiff was not notified in writing of the 1976 change in the “policy,” see 29 U.S.C. § 1022, Anderson knew that his plan did not contain the new benefits, and he does not argue that ERISA causes a plan to stay in force unmodified until a change is reported and disclosed. The Supreme Court has held that the Act “does not regulate the substantive content of welfare-benefit plans.” Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 732, 105 S.Ct. 2380, 2385, 85 L.Ed.2d 728 (1985). The Act was not designed to prohibit modification of these ancillary [non-accrued] benefits. See H.R.Conf. R. No. 1280, 93d Cong., 2d Sess. 273, reprinted in 1974 U.S.Code Cong. & Ad. News 4639, 5038, 5054; H.R.Rep. No. 807, 93d Cong., 2d Sess. 60-61, reprinted in 1974 U.S. Code Cong. & Ad. News 4639, 4670-4726. Rather, Congress believed that the “vesting of these ancillary benefits would seriously complicate the administration and increase the cost of plans whose primary function is to provide retirement income.” H.R.Rep. No. 807, 93d Cong., 2d Sess. 60, reprinted in 1974 U.S.Code Cong. & Ad. News 4890, 4935. An employer may change such benefits without violating ERISA. Sutton v. Weirton Steel Div. of Nat. Steel Corp., 724 F.2d 406, 410 (4th Cir.1983), cert. denied, 467 U.S. 1205, 104 S.Ct. 2387, 81 L.Ed.2d 345 (1984); Fentron Industries v. Nat. Shopmen Pension Fund, 674 F.2d 1300, 1306 (9th Cir.1982) (“A pension plan may cancel benefits not required by ERISA’s minimum vesting standards.”) Thus, treating the “as good as” policy as a plan or part of a plan, the terms of ERISA do not provide a cause of" }, { "docid": "23523817", "title": "", "text": "to May 1986, its unvarying practice during that period constituted a de facto ERISA plan requiring severance pay to any employee who was terminated involuntarily. Even if we accept for purposes of this appeal the proposition that Emhart’s pre-1986 practice was an ERISA plan, plaintiffs cannot prevail since (1) ERISA did not prohibit Emhart from amending the plan to deny severance pay to employees offered positions by the purchaser when the operation in which they were employed was sold as a going concern, and (2) even if Em-hart’s prior practice remained in effect, there was no indication that under that practice severance benefits would be paid to employees whose operation was sold as a going concern and who continued to work for the purchasers. ERISA governs two types of employee benefit plans: those that provide for “pension” benefits, see 29 U.S.C. § 1002(2), and those that provide for “welfare” benefits, see id. § 1002(1). In recognition of the expense of maintaining and administering employee benefit plans, Congress structured ERISA to impose the most stringent requirements in connection with pension plans and left the employer with considerable flexibility with respect to welfare plans. See, e.g., S.Rep. No. 383, 93d Cong., 2d Sess. 18, reprinted in 1974 U.S.Code Cong. & Admin.News (“USCCAN”) 4639, 4890, 4904 (Congress sought to “keep[] costs within reasonable limits”); id. at 51, USCCAN at 4935 (requiring vesting of ancillary benefits “would seriously complicate the administration and increase the cost of plans whose primary function is to provide retirement income”). Thus, employee pension benefit plans are subject to elaborate accrual, vesting, and funding requirements. 29 U.S.C. §§ 1051-1085. On the other hand, welfare benefit plans, though subject to certain disclosure and fiduciary requirements, see id. §§ 1021-1031, 1101-1114, “are exempt from the more stringent ERISA requirements,” Young v. Standard Oil (Indiana), 849 F.2d 1039, 1045 (7th Cir.), cert. denied, 488 U.S. 981, 109 S.Ct. 529, 102 L.Ed.2d 561 (1988), and welfare benefits are thus unaccrued and nonvested. An unfunded severance plan is an “employee welfare benefit plan” under § 1002(1). Gilbert v. Burlington Industries, Inc., 765 F.2d 320, 325" }, { "docid": "22156525", "title": "", "text": "of its duties with respect to the plan, the employ er must satisfy the exacting fiduciary standards imposed by ERISA. Congress, however, has not prohibited an employer who is also a fiduciary from exercising the right accorded other employers to renegotiate or amend, as the case may be, unfunded contingent benefits payable before normal retirement age. The changes, accomplished in this manner, are not to be reviewed by fiduciary standards. These conclusions are sustained by United Mine Workers Health and Retirement Funds v. Robinson, 455 U.S. 562, 573-76, 102 S.Ct. 1226, 1232-34, 71 L.Ed.2d 419 (1982). Robinson dealt with the fiduciary obligations imposed by § 302 of the Labor Management Relations Act, 29 U.S.C. § 186, on trustees of a fund for employee benefits. Nevertheless, it is pertinent because the high fiduciary standards exacted by both the Labor Act and ERISA are essentially the same. In Robinson, benefits created by the collective bargaining agreement were changed by renegotiation. The Court held that the changes were not to be reviewed under fiduciary standards, cautioning: “[W]hen neither the collective-bargaining process nor its end product violates any command of Congress, a federal court has no authority to modify the substantive terms of a collective-bargaining contract.” 455 U.S. at 576, 102 S.Ct. at 1234. Ill In addition to the general fiduciary standards imposed by § 1104, Congress also prohibited fiduciaries from engaging in certain specified conduct, including transferring assets of a plan to a party in interest, dealing with assets for their own account, and acting in any capacity in a transaction involving the plan on behalf of a party whose interests are adverse to the plan. 29 U.S.C. § 1106. See NLRB v. Amax Coal Co., 453 U.S. 322, 332-34, 101 S.Ct. 2789, 2795-97, 69 L.Ed.2d 672 (1981). The appellants assert that the district court erred by holding that National did not violate these provisions of § 1106. They base their argument on two premises: first, that National’s liability for the contingent benefits was an asset of the plan; and, second, that National illegally caused the plan to relinquish this asset by agreeing" }, { "docid": "22156522", "title": "", "text": "of fact, the district court accepted as proved the allegations that National’s sole motivation for the sale was avoiding future pension obligations. See Dhayer, 571 F.Supp. at 326; Sutton, 567 F.Supp. at 1198. Though permitted by 29 U.S.C. § 1108(c)(3) to serve as an administrator of its pension plan, National’s fiduciary obligations were not diminished by its dual role. Donovan v. Bierwirth, 680 F.2d 263, 271 (2d Cir.1982). National was required to discharge its fiduciary duties “solely in the interest of the participants and beneficiaries.” 29 U.S.C. § 1104(a)(1). ERISA’s requirements “insulate the trust from the employer’s interest,” and, consequently, National was not permitted to assume a position where it had “dual loyalties” in the administration of the plan. NLRB v. Amax Coal Co., 453 U.S. 322, 333-34, 101 S.Ct. 2789, 2796-97, 69 L.Ed.2d 672 (1981). By retaining liability for all normal retirement benefits and establishing a separate trust for their payment, National did not violate any provision of ERISA or any fiduciary obligation with respect to accrued benefits, which under the plan were payable at age 65. The critical question, therefore, is whether ERISA imposes any fiduciary obligations to maintain the contingent benefits about which the appellants complain. If it does, summary judgment was inappropriate, because in avoiding the payments through sale of the Division, National’s self-motivation, which the district court assumed for the purpose of this proceeding, cannot be reconciled with its fiduciary duties. On the other hand, if ERISA does not impose an obligation on National to maintain the contingent benefits, National in its capacity as an employer could undertake to eliminate them. Under ERISA’s vesting rules, only accrued benefits must be nonforfeitable. 29 U.S.C. § 1053(a). With respect to the issues raised by these appeals, ERISA defines an accrued benefit as an “annual benefit commencing at normal retirement age.” 29 U.S.C. § 1002(23). The accrued benefits secured by ERISA do not encompass unfunded, contingent early retirement benefits or severance payments. The Act was not designed to prohibit modification of these ancillary benefits. See H.R.Conf.R. No. 1280, 93d Cong., 2d Sess. 273, reprinted in 1974 U.S.Code Cong." }, { "docid": "22917700", "title": "", "text": "or the federal common law and held that ERISA itself positively precludes informal written modifications of employee benefit plans of the kind necessary for plaintiffs’ estoppel theory to succeed. Finally, the district court found that the plaintiffs misunderstood the notice requirements for SPDs in ERISA Section 102(b), and that Metropolitan’s SPDs amply satisfied those requirements. Because plaintiffs have abandoned Counts One, Two and Three on appeal, only the unilateral contract and estoppel claims are before us. DISCUSSION ERISA regulates pension plans far more extensively than welfare plans. For example, welfare plans are expressly exempted from the Act’s detailed minimum participation, vesting and benefit-accrual requirements and are not subject to ERISA’s minimum-funding requirements. As explained by Committees of both the House and Senate, the term “accrued benefit” refers to pension or retirement benefits and is not intended to apply to certain ancillary benefits, such as medical insurance or life insurance, which are sometimes provided for employees in conjunction with a pension plan, and are sometimes provided separately. To require the vesting of these ancillary benefits would seriously complicate the administration and increase the cost of plans whose primary function is to provide retirement income. H.R.Rep. No. 93-807, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 4639, 4670, 4726; S.Rep. No. 93-383, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 4639, 4890, 4935. Automatic vesting does not occur in the case of welfare plans, and Metropolitan clearly reserved in the plan documents and in the SPDs the right to amend or terminate the plans at issue. Plaintiffs are therefore driven to argue that the “contract” between themselves and Metropolitan “consists of the totality of the representations made to the employees by the Company, and the actions of the employees in accepting those representations by re maining with the Company.” We disagree. Congress intended ERISA “to occupy fully the field of employee benefit plans and to establish it ‘as exclusively a federal concern.’ ” Gilbert v. Burlington Indus. Inc., 765 F.2d 320, 326 (2d Cir.1985) (ERISA preempts statutory and common law claims) (quoting Alessi v. Raybestos-Manhattan, Inc.," }, { "docid": "22108695", "title": "", "text": "consistently interpreted by the courts, ERISA itself offers the retirees little help. On its face, the statute clearly “does not give an employee any nonforfeitable right to early retirement benefits.” McBarron v. S & T Industries, Inc., 771 F.2d 94, 99 (6th Cir.1985). See also Bencivenga v. Western Pennsylvania Teamsters and Employers Pension Fund, 763 F.2d 574, 577-78 (3d Cir.1985) (ERISA does not protect “rights” to unfunded early retirement benefits); Sutton v. Weirton Steel Division of Nat’l Steel Corp., 724 F.2d 406, 410 (4th Cir.1983) (same); Fine v. Semet, 699 F.2d 1091, 1093 (11th Cir.1983) (“The Act imposes no obligation on a plan to pay benefits before an employee reaches normal retirement age. Any right to earlier benefits and a particular method of payment must be found in the individual agreements.”)(citing Pompano v. Michael Schiavone & Sons, Inc., 680 F.2d 911, 914 (2d Cir.1982)) (emphasis supplied); Hernandez v. Southern Nevada Culinary & Bartenders Pension Trust, 662 F.2d 617, 619 (9th Cir.1981) (ERISA does not require that vested retirement benefits be payable before normal retirement age). Cf. H.R. Rep. No. 807, 93d Cong., 2d Sess. 57, reprinted in 1974 U.S.Code Cong. & Admin. News 4639, 4670, 4726 (nonforfeitability/vesting rules of ERISA not intended to apply to “such items as the value of the right to receive benefits commencing at an age before normal retirement age”). In search of persuasive support for their threshold claim of a “nonforfeitable” entitlement to subsidized early retirement benefits, therefore, the retirees must look to the structure of the Vitro Plan itself. The argument is fairly straightforward, and not without some surface appeal. From an early retiree’s perspective, subsidized benefits are “unconditionally” available, in the sense that all the qualifying participant need do is retire. Cf. 29 C.F.R. § 2613.6(a) (1988) (Pension Benefit Guaranty Corporation regulation defining “nonfor-feitable” benefit as one payable if the participant “has satisfied all of the conditions required of him or her under the provisions of the plan to establish entitlement to the benefit, except the submission of a formal application, retirement [or] completion of a required waiting period”). Such benefits are also" }, { "docid": "7412292", "title": "", "text": "benefits. See H.R.Conf. R. No. 1280, 93d Cong., 2d Sess. 273, reprinted in 1974 U.S.Code Cong. & Ad. News 4639, 5038, 5054; H.R.Rep. No. 807, 93d Cong., 2d Sess. 60-61, reprinted in 1974 U.S. Code Cong. & Ad. News 4639, 4670-4726. Rather, Congress believed that the “vesting of these ancillary benefits would seriously complicate the administration and increase the cost of plans whose primary function is to provide retirement income.” H.R.Rep. No. 807, 93d Cong., 2d Sess. 60, reprinted in 1974 U.S.Code Cong. & Ad. News 4890, 4935. An employer may change such benefits without violating ERISA. Sutton v. Weirton Steel Div. of Nat. Steel Corp., 724 F.2d 406, 410 (4th Cir.1983), cert. denied, 467 U.S. 1205, 104 S.Ct. 2387, 81 L.Ed.2d 345 (1984); Fentron Industries v. Nat. Shopmen Pension Fund, 674 F.2d 1300, 1306 (9th Cir.1982) (“A pension plan may cancel benefits not required by ERISA’s minimum vesting standards.”) Thus, treating the “as good as” policy as a plan or part of a plan, the terms of ERISA do not provide a cause of action against the Company for unilaterally eliminating the policy. See In Re White Farm Equipment Co., 788 F.2d 1186, 1193 (6th Cir.1986) (“Congress expressly exempted employee welfare benefit plans from stringent vesting, participation, and funding requirements. Congress recognized the difference between welfare benefit plans and pension plans, and we discern no basis for finding mandatory vesting in ERISA of retiree welfare benefits.”). IV. DOES FEDERAL COMMON LAW RECOGNIZE A CONTRACT RIGHT ARISING OUT OF THE ANNOUNCEMENT OF A “POLICY” OF IMPROVING A WELFARE BENEFIT TO CONFORM TO IMPROVEMENTS IN ANOTHER PLAN AND EMPLOYEE’S RENDERING OF SERVICE THEREAFTER? Anderson argues that if South Dakota law is really preempted South Dakota contract law [should] be used as the basis of federal common law of contracts, which would result in the conclusion that Morrell breached its employment contract with Anderson, and those he represents, by not providing them fringe benefits during retirement that were as good as or better than, those provided their union counterparts. Appellant’s Brief, p. 25. The Sixth Circuit has concluded “that the parties may" }, { "docid": "22846413", "title": "", "text": "(1981), “employees with long years of employment and contributions [will] realize anticipated pension benefits.” Reuther v. Trustees of Trucking Employees, 575 F.2d 1074, 1077 (3d Cir.1978). In support of its opinion that an “accrued benefit” does not embrace unreduced early retirement benefits payable under a pension plan, the district court mistakenly relied upon an excerpt taken out of context from the following statement in the House Report on ERISA, which did not relate to the question before us: “In the case of a defined benefit plan the bill provides that the accrued benefit is to be determined under the plan, subject to certain requirements. The term ‘accrued benefit’ refers to pension or retirement benefits and is not intended to apply to certain ancillary benefits, such as medical insurance or life insurance, which are sometimes provided for employees in conjunction with a pension plan, and are sometimes provided separately. To require the vesting of these ancillary benefits would seriously complicate the administration and increase the cost of plans whose primary function is to provide retirement income. Also, where the employee moves from one employer to another, the ancillary benefits (which are usually on a contingency basis) would often be provided by the new employer, whereas the new employer normally would not provide pension benefits based on service with the old employer. Also, the accrued benefit to which the vesting rules apply is not to include such items as the value of the right to receive benefits commencing at an age before normal retirement age, or so-called social security supplements which are commonly paid in the case of early retirement but then cease when the retiree attains the age at which he becomes entitled to receive current social security benefits, or any value in a plan’s joint and survivor annuity provisions to the extent that exceeds the value of what the participant would be entitled to receive under a single life annuity.” H.R.Rep. No. 807, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 4639, 4670, 4726 (emphasis supplied); see also H.Conf.Rep. No. 1280, 93d Cong., 2d Sess., reprinted in" }, { "docid": "22156523", "title": "", "text": "at age 65. The critical question, therefore, is whether ERISA imposes any fiduciary obligations to maintain the contingent benefits about which the appellants complain. If it does, summary judgment was inappropriate, because in avoiding the payments through sale of the Division, National’s self-motivation, which the district court assumed for the purpose of this proceeding, cannot be reconciled with its fiduciary duties. On the other hand, if ERISA does not impose an obligation on National to maintain the contingent benefits, National in its capacity as an employer could undertake to eliminate them. Under ERISA’s vesting rules, only accrued benefits must be nonforfeitable. 29 U.S.C. § 1053(a). With respect to the issues raised by these appeals, ERISA defines an accrued benefit as an “annual benefit commencing at normal retirement age.” 29 U.S.C. § 1002(23). The accrued benefits secured by ERISA do not encompass unfunded, contingent early retirement benefits or severance payments. The Act was not designed to prohibit modification of these ancillary benefits. See H.R.Conf.R. No. 1280, 93d Cong., 2d Sess. 273, reprinted in 1974 U.S.Code Cong. & Ad.News 4639, 5038, 5054; H.R.Rep. No. 807, 93d Cong., 2d Sess. 60-61, reprinted in 1974 U.S.Code Cong. & Ad.News 4639, 4670, 4726. Rather, Congress believed that the “vesting of these ancillary benefits would seriously complicate the administration and increase the cost of plans whose primary function is to provide retirement income.” H.R.Rep. No. 807, 93d Cong., 2d Sess. 60, reprinted in 1974 U.S.Code Cong. & Ad.News 4890, 4935. An employer may change such benefits without violating ERISA. See Fentron Industries, Inc. v. National Shopmen Pension Fund, 674 F.2d 1300, 1306 (9th Cir.1982). But cf. Dependahl v. Falstaff Brewing Corp., 491 F.Supp. 1188, 1196-97 (E.D.Mo. 1980), modified, 653 F.2d 1208 (8th Cir.1981). Any right to payment of benefits before normal retirement age must be found in pertinent employment agreements. Fine v. Semet, 699 F.2d 1091, 1093 (11th Cir.1983). Consequently, National, in its capacity as an employer, did not violate ERI-SA. Also, National, in its capacity as a fiduciary, did not violate ERISA. Congress authorized an employer to administer its pension plan, and in the discharge" }, { "docid": "21721436", "title": "", "text": "retirement. Congress designed ERISA to prevent this practice, known as “back-loading of benefits”, whereby an employee who for some reason does not continue employment until normal retirement age becomes vested only as to a minimal amount of accrued benefits. . \"[W]here the employee moves from one employer to another, the ancillary benefits (which are usually on a contingent basis) would often be provided by the new employer, whereas the new employer normally would not provide pension benefits based on service with the old employer.” S.Rep. No. 383, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 4890, 4935. . We note that in Shaw v. International Association of Machinists & Aerospace Workers Pension Plan, 750 F.2d 1458 (9th Cir.1985), the United States Court of Appeals for the Ninth Circuit similarly held that a \"living pension feature\" of a pension plan was an accrued benefit under ERISA because it was a retirement benefit, it was expressed in terms of a formula set out in the plan, and it was not transferable from one employer to another. For these reasons, the court found that the feature “fits more easily within the enumeration of accrued” rather than ancillary benefits. Id. at 1463-64. . Defendants support their argument that the benefits in question here are ancillary benefits by citing the following language from the House Report: [The] accrued benefit to which vesting rules apply is not to include such items as the value of the right to receive benefits commencing at an age before normal retirement age. H.R.Rep. No. 807, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 4670, 4726. Plaintiffs’ partial pension benefits commence at, not before, normal retirement age. The fact that plaintiffs ended their participation in the Cumberland Fund prior to reaching normal retirement age did not alter the date on which they became eligible to receive their pension benefits. The language quoted above refers to early retirement benefits provided by some plans, under which an employee who opts for early retirement receives benefits before reaching normal retirement age. It should be noted that § 1054(g)," }, { "docid": "22436930", "title": "", "text": "“all of the provisions in [ERISA] ... on the basis of their projected costs in relation to the anticipated benefit to the employee participant.” Id., 1974 U.S.Code Cong. & Admin.News at 4639-40. Congress’s concern with minimizing employers’ compliance costs is especially evident in ERISA’s accrual and vesting provisions. Before determining appropriate minimum vesting requirements for pension plans, the Senate Subcommittee on Labor commissioned an independent actuarial study “to determine the range of estimated costs to private pension plans resulting from compliance with minimum vesting requirements under several proposed minimum vesting standards.” D. Grubbs, Summary of Report: Study of the Cost of Mandatory Vesting Provisions (1972), reprinted in 1974 U.S.Code Cong. & Admin. News 4884, 4885. Moreover, Congress imposed no vesting requirements on welfare plans because it determined that “[t]o require the vesting of these ancillary benefits would seriously complicate the administration and increase the cost of plans whose primary function is to provide retirement income.” H.Rep. No. 807, 93rd Cong., 2d Sess. 60, reprinted in 1974 U.S.Code Cong. & Admin. News 4670, 4726; S.Rep. No. 383, 93rd Cong., 1st Sess. 51, reprinted in 1974 U.S.Code Cong. & Admin.News 4890, 4935. In light of this background, we find it extremely unlikely that Congress, in defining an ERISA fiduciary in section 3(21)(A), intended that the word “administration” encompass amendment decisions, thus sweeping away by indirection the limitations so meticulously built into the participation and vesting requirements. Virtually every circuit has rejected the proposition that ERISA’s fiduciary duties attach to an employer’s decision whether or not to amend an employee benefit plan. For example, in Sutton v. Weirton Steel Division, 724 F.2d 406 (4th Cir.1983), cert. denied, 467 U.S. 1205, 104 S.Ct. 2387, 81 L.Ed.2d 345 (1984), the Fourth Circuit held that an employer's decision “to renegotiate or amend ... unfunded contingent benefits” was “not to be reviewed by fiduciary standards.” Id. at 411. Similarly, the Eleventh Circuit has held that “ERISA simply does not prohibit a company from eliminating previously offered benefits that are neither vested nor accrued.” Phillips v. Amoco Oil Co., 799 F.2d 1464, 1471 (11th Cir.1986), cert. denied, 481" }, { "docid": "22034191", "title": "", "text": "H.R.Rep. No. 533, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad. News 4639. ERISA applies to any “employee benefit plan” if it is established or maintained by any employer or employee organization engaged in commerce or in any industry or activity affecting commerce. 29 U.S.C. § 1003(a). An “employee welfare benefit plan” is broadly defined to include: [A]ny plan, fund, or program which was ... established or maintained by an employer ... 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) ... unemployment, or vacation benefits, ... 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). 29 U.S.C. § 1002(1). Section 186(c), cited in subsection (B) above, specifically lists “severance benefits.” The effect of citing to section 186(c) is “to include within the definition of ‘welfare plan’ those plans which provide holiday and severance benefits, and benefits which are similar . . . .” 29 C.F.R. § 2510.3-1(a)(3). See Donovan v. Dillingham, 688 F.2d 1367, 1370-73 (11th Cir. 1982) (en banc). Thus, the severance pay plan in this case is an employee welfare benefit plan to which ERISA applies. Neither the vesting and participation requirements nor the funding requirements of ERISA apply to employee welfare benefit plans such as severance plans, 29 U.S.C. §§ 1051(1), 1081(a)(1), but the reporting and disclosure requirements, 29 U.S.C. §§ 1021-1031, and the fiduciary responsibility standards, 29 U.S.C. §§ 1101— 1114, do. Thus, Del Monte’s severance pay plan is subject to ERISA’s reporting, disclosure, and fiduciary requirements. Once established, ERISA operates to protect an employee’s interest in the welfare benefit program regardless of whether the employer complies with the administrative and reporting requirements detailed under ERISA. Donovan v. Dillingham, 688 F.2d 1367, 1372 (11th Cir.1982). Accord, Dependahl v. Falstaff Brewing Corp., 491 F.Supp. 1188, 1195 (E.D.Mo.1980), aff'd 653 F.2d 1208 (8th Cir.), cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384" } ]

[ { "docid": "20324489", "title": "", "text": "(2)”). Although McNally does not appear to be making the argument, even if McNally’s claim could be read as an aiding and abetting claim under section 378-2(3), her claim for individual liability would fail. Just as her gender discrimination claims under Title IX fail when the court applies the burden-shifting analysis to those claims, McNally’s gender discrimination claims under chapter 378 of the Hawaii Revised Statutes fail for the same reasons. See Schefke v. Reliable Collection Agency, Ltd., 96 Hawai’i 408, 426, 32 P.3d 52, 70 (2001) (applying McDonnell Douglas burden-shifting analysis to claims asserted under section 378-(2) and (3) of the Hawaii Revised Statutes). Moreover, the Individual Defendants also have qualified immunity with respect to McNally’s individual capacity state-law claims. Although the Individual Defendants argue qualified immunity under Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), and its progeny, Hawaii law provides a similar qualified immunity defense for state and local officials sued under state law. Under Hawaii law, a nonjudieial governmental official performing a public duty enjoys the protection of what has been termed a qualified or conditional privilege. See Towse v. Hawaii, 64 Haw. 624, 631, 647 P.2d 696, 702 (1982). This privilege effectively shields the official from liability, and not from the imposition of the suit itself, to the extent that the privilege is not abused and thereby lost. Id. For an action to lie against an official acting under a claim of privilege, it is essential that the injured party allege and prove that the official was motivated by malice and not by an otherwise proper purpose. Id. If, in exercising his or her official authority, the public official was motivated by malice, and not by an otherwise proper purpose, Hawaii law provides that the cloak of immunity is lost, and the official must defend the suit the same as any other defendant. Marshall v. University of Hawaii, 9 Haw.App. 21, 37, 821 P.2d 937, 946 (Ct.App.1991), not followed on other grounds, Takaki v. Allied Mach. Corp., 87 Hawai’i 57, 951 P.2d 507 (1998). Because the existence of malice is" } ]

[ { "docid": "12295936", "title": "", "text": "non-moving party and drawing all reasonable inferences in its favor, that ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir.2011) (quoting Fed.R.Civ.P. 56(a)). I. Title VII claims are generally “analyzed under the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny.” Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir.2008). At the first stage of McDonnell Douglas, a plaintiff “bears the burden of establishing a prima facie case of discrimination,” which includes demonstrating that “he suffered an adverse employment action ... under circumstances giving rise to an inference of discriminatory intent.” Id. “Once the prima facie case has been shown, ‘the burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason’ for the adverse employment action.” United States v. Brennan, 650 F.3d 65, 93 (2d Cir.2011) (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). A plaintiff may also attempt more directly to “convince the trier of fact that an impermissible criterion in fact entered into the employment decision” by “focus[ing] his proof directly at the question of discrimination and prov[ing] that an illegitimate factor had a ‘motivating’ or ‘substantial’ role in the employment decision.” Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1181 (2d Cir.1992) (citation omitted). If the employee does so, he is “entitled to succeed subject only to the employer’s opportunity to prove its affirmative defense, that is, that it would have reached the same decision as to [the employee’s employment] even in the absence of the impermissible factor.” Id. (internal quotation marks and citations omitted). Marasehiello’s central contention is that Ricci establishes that defendants’ actions violated Title VII. Repeated references in his brief to a “Ricci theory” or “Ricci analysis” suggest that he is arguing that the case established a new framework for Title VII litigation. It did not. As we have explained, “Ricci does not impose a new ... summary-judgment burden-shifting framework, but" }, { "docid": "1913980", "title": "", "text": "no direct evidence of race discrimination. Plaintiff must therefore rely on the burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, Plaintiff must show that (1) she is a member of a protected class; (2) she was performing her job adequately; (3) she suffered a materially adverse employment action; and (4) others outside the protected class were treated more favorably. Gonzalez v. Ingersoll Mill. Mach. Co., 133 F.3d 1025, 1031-32 (7th Cir.1998) {citing McDonnell Douglas Corp., 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668). If these elements are shown, Plaintiff raises a rebuttable presumption of discrimination. At that point, “the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action.” Sirvidas v. Commonwealth Edison Co., 60 F.3d 375, 377-78 (7th Cir.1995). If Armstrong then offers a legitimate explanation, the presumption of discrimination dissolves and the burden of persuasion shifts back to Plaintiff to prove that Armstrong’s proffered reason was pretextual. Sirvidas, 60 F.3d at 378. There is no dispute in this case that Plaintiff satisfies the first element of her prima facie case. As an African-American, she falls within a protected class. Moreover, she clearly satisfies the third element in that she was terminated. Armstrong does dispute, however, that Plaintiff can satisfy the second and fourth elements. Specifically, Armstrong disputes that Plaintiff performed her job adequately and that similarly-situated white employees were treated more favorably. As noted above, Plaintiff has offered no affirmative evidence whatsoever in this case. As a result, she has failed to offer evidence to establish that she was performing the job adequately or that similarly-situated non-African-American employees were treated more favorably. On that basis alone, the court could find that Plaintiff has failed to establish a prima facie case of race discrimination and that summary judgment is therefore proper on this claim. Yet even if Plaintiff had satisfied her prima facie case, summary judgment in favor of Armstrong would be proper because Armstrong has offered evidence of a legitimate non-discriminatory reason for its decision to" }, { "docid": "11516497", "title": "", "text": "grant of summary judgment de novo. Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir.1997). Viewing the evidence in a light most favorable to Cianci, this court will affirm the grant of summary judgment if the record demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). A. Title VII Cianci asserts that she was terminated because she is female. Title VII makes it unlawful for an employer “to discharge any individual ... because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Cianci appears to proceed under the indirect method of proof in an attempt to raise an inference of discrimination. The indirect method first requires her to offer sufficient evidence to establish a prima facie case. Pafford v. Herman, 148 F.3d 658, 665-66 (7th Cir.1998) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Once Cianci establishes a prima facie case, there is a rebutta-ble presumption of discrimination and the employer must offer a legitimate, non-discriminatory reason for the adverse employment action. Id. If the employer makes this showing, then the presumption is eliminated and the plaintiff must show that the employer’s reason for the adverse employment action is a pretext for discrimination. See Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir.1995). Neither the parties nor the magistrate judge ascertained whether Cianci has successfully demonstrated a prima facie case of gender discrimination. Generally, a plaintiff must establish her prima facie case before the court will proceed to an analysis of pretext. See Coco v. Elmwood Care, 128 F.3d 1177 (7th Cir.1997). However, because Cian-ci ultimately fails to raise a genuine issue of material fact that she was terminated because she is female, we will assume that the prima facie case has been satisfied. Thus, the burden shifts to Pettibone to set forth a legitimate, non-diseriminatory reason for firing her. Pettibone asserts that Cianci was fired because she made eighteen personal shipments using Beardsley’s DHL" }, { "docid": "13174148", "title": "", "text": "most favorable to the non-moving party and draw all reasonable inferences in her favor. Gerald v. Univ. of P.R., 707 F.3d 7, 16 (1st Cir.2013). Summary judgment is appropriate only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Gerald, 707 F.3d at 16. However, “conclu-sory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative will not suffice to ward off a properly supported summary judgment’ motion.” Nieves-Romero v. United States, 715 F.3d 375, 378 (1st Cir.2013) (internal quotation marks omitted). On appeal, Planadeball only challenges the district court’s grant of summary judgment on her federal retaliation claim. Title VII makes it unlawful for “an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). As the Supreme Court explained, this “antire-taliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Title VII retaliation claims proceed under the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The plaintiff, first, must establish a prima facie case of retaliation by providing evidence that “[o]ne, she undertook protected eonduct[;] ... [t]wo, her employer took a material adverse action against her[;] ... [a]nd ... three, a causal nexus exists between elements one and two.” Medina-Rivera v. MVM, Inc., 713 F.3d 132, 139 (1st Cir. 2013) (citations omitted). Once the plaintiff makes out this prima facie case, the burden shifts to the defendant to articulate a legitimate, non-retaliatory explanation for its actions. See Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir.2010). If the defendant carries this" }, { "docid": "6926397", "title": "", "text": "claims and by denying his request for a continuance. A. Summary Judgment Davis contends that the defendants are not entitled to summary judgment on his race discrimination, retaliation, and conspiracy claims. “We review de novo the district court’s grant of summary judgment.” Davis v. KARK-TV, Inc., 421 F.3d 699, 703 (8th Cir.2005). “Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Id. (quotation and citation omitted). “The burden of demonstrating that there are no genuine issues of material fact rests on the moving party,” and “[w]e review the evidence and the inferences that reasonably may be drawn from the evidence in the light most favorable to the nonmoving party.” Id. (quotations and citations omitted). 1. Discrimination Claims Davis alleges that the district court erroneously granted summary judgment on his race discrimination claims pursuant to 42 U.S.C. § 1981 and ACRA. “We analyze ... § 1981 claims ... and ACRA claims in the same manner.” Id. When there is no direct evidence of discrimination, “[w]e employ the familiar McDonnell Douglas burden-shifting framework to conduct our analysis.” Id. at 704; see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). “Under the McDonnell Douglas framework, a presumption of discrimination is created when the plaintiff meets [his] burden of establishing a prima facie case of employment discrimination.” Davis, 421 F.3d at 704 (quotation and citation omitted). A plaintiff meets this burden “by showing that he or she: (1) is a member of a protected group; (2) was meeting the legitimate expectations of the employer; (3) suffered an adverse employment action; and (4) [suffered] under circumstances permitting an inference of discrimination.” Maxfield v. Cintas Corp. No. 2, 427 F.3d 544, 550 (8th Cir.2005) (quotation and citation omitted). “Once a plaintiff successfully establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its adverse employment action.” Davis, 421 F.3d at 704 (quotation and citation omitted). “If the employer meets its" }, { "docid": "22923140", "title": "", "text": "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); Shanklin, 397 F.3d at 596. The nonmoving party “may not rest upon the mere allegations or denials of the [nonmoving] party’s pleading, but the [nonmoving] party’s response, by affidavits or as otherwise provided in [Federal Rule of Civil Procedure 56], must set forth, specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). We apply the same analysis in reviewing Kasper’s claims brought under Title VII and the MHRA. Henderson v. Ford Motor Co., 403 F.3d 1026, 1032 n. 5 (8th Cir.2005); Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn.2001). Because Kasper presented no direct evidence of retaliation, we apply the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Eliserio v. United Steelworkers of Am. Local 310, 398 F.3d 1071, 1078 (8th Cir.2005). Under this burden-shifting framework, the plaintiff first must demonstrate a prima facie case of retaliation. Id. If the plaintiff presents a prima facie case of retaliation, the burden shifts to the employer to rebut the plaintiffs prima facie case by articulating a legitimate, non-discriminatory reason for its adverse employment decision. Id. If the employer successfully makes this showing, the burden shifts back to the plaintiff to show the employer’s proffered reason was a pretext. Id. To establish a prima facie case of retaliation, Kasper must show (1) she engaged in a protected activity, (2) she suffered an adverse employment action, and (3)a causal connection between the protected activity and the adverse employment action. Id. at 1078-79. The parties agree Kasper has satisfied the first and second elements of her prima facie case of retaliation-Kasper engaged in a protected activity by reporting Johnson’s inappropriate conduct to the human resources department on October 10, 2001, and Federated took adverse employment action against Kasper when it discharged her on October 8, 2002. The issue on appeal is whether the district court correctly concluded Kasper failed to demonstrate the third element" }, { "docid": "18914625", "title": "", "text": "at a later time if need be. See Fed.R.Civ.P. 12(h)(3). As a general matter, Title IX discrimination claims are analyzed by analogy to the legal standards of Title VII. Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 540 (1st Cir.1995); Preston, 31 F.3d at 206-07; Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 896-97 (1st Cir.1988); Nelson, 923 F.Supp. at 279 & n. 2 (citing cases). Employment discrimination claims under Title VII must travel the well-worn path set forth by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In McDonnell Douglas, the Court set forth a flexible burden-shifting paradigm for the lower courts to follow in weighing employment discrimination claims based (as they often are) on circumstantial evidence. Though McDonnell Douglas dealt with racial discrimination, the paradigm applies equally to Title VII claims based upon sex discrimination. As a general matter, plaintiff has the original burden of presenting a prima facie case of employment discrimination. The burden then shifts to defendant who must respond by “articulating some legitimate, non-discriminatory reason for the employee’s rejection.” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Once done, the plaintiff must prove that the defendant’s stated reason was merely a pretext for discrimination. Id. at 804, 93 S.Ct. at 1825. The University moves for summary judgment on the ground that, based on the undisputed facts in the record and while drawing all reasonable inferences in her favor, Bedard is unable to carry the foregoing burdens. Our rules of civil procedure state that a party shall be entitled to summary judgment “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). Hence, “a party seeking summary judgment [must] make a preliminary showing that no genuine issue of material fact exists. Once the movant has made this showing, the nonmovant must contradict the showing by pointing to" }, { "docid": "20313961", "title": "", "text": "district court also found that PCSD had provided a nondiscriminatory justification for its ultimate employment decision and Goncalves had not shown that PCSD’s proffered reason was pretextual. Id. at *3. Goncalves appealed. II. Discussion A. Standard of Review Summary judgment is properly granted where the movant “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). We review the district court’s grant of summary judgment de novo, “drawing all reasonable inferences in favor of the non-moving party while ignoring ‘conclusóry allegations, improbable inferences, and unsupported speculation.’” Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir.2009) (quoting Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir.2009)). We evaluate an employment discrimination claim for which there is no direct evidence of discrimination by applying the three-stage framework of the McDonnell Douglas burden-shifting analysis. Thompson v. Coca-Cola Co., 522 F.3d 168, 176 (1st Cir.2008); Rossy v. Roche Prods., Inc., 880 F.2d 621, 625 (1st Cir.1989); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must show a prima facie case of employment discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the plaintiff succeeds, “[t]he burden then shifts to the defendant to present a legitimate, non-discriminatory reason, sufficient to raise a genuine issue of material fact as to whether it discriminated against the employee, for the employment decision.” Quiñones v. Buick, 436 F.3d 284, 289 (1st Cir.2006). If the defendant provides such a reason, “the McDonnell Douglas framework — with its presumptions and burdens — is no longer relevant.” Vélez v. Thermo King de P.R., Inc., 585 F.3d 441, 447 (1st Cir.2009) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)) (internal quotation marks omitted). Instead, the ball returns to the plaintiffs court, in which she must prove by a preponderance of the evidence that defendant’s alleged nondiscriminatory reason was in fact a pretext for discrimination. Quiñones, 436 F.3d at" }, { "docid": "22688305", "title": "", "text": "As Aloha notes, the findings of the unemployment tribunal do not show that Aloha discriminated. They are, instead, based on the rejection of Aloha’s “hearsay” evidence. They thus do not impugn Aloha’s belief in its proffered reasons for Villiarimo’s termination. Because Villiarimo has not shown that the reasons Aloha offers for her termination are pretextual, then, her claim for gender-based discrimination in. violation of Title VTI must fail. 2 Villiarimo also contends that her termination was gender-based discrimination in violation of Hawai’i law. The analysis of this claim is identical in all relevant respects to the analysis of her Title VII claim: Hawai’i courts use the McDonnell Douglas burden-shifting approach in analyzing these claims. See Shoppe v. Gucci America, Inc., 94 Hawai’i 368, 14 P.3d 1049, 1059 (2000) (“When analyzing an individual’s disparate treatment claim that relies on circumstantial evidence of employer discrimination, we have previously applied the burden-shifting analysis set forth by the United States Supreme Court in [McDonnell Douglas ]”). Villiarimo’s state-law discrimination claim must therefore fail for the same reasons that her federal claim fails: even if she has proven a prima facie case of discrimination, she has failed to demonstrate that the legitimate, non-discriminatory reasons for her termination offered by Aloha for her termination are pretextual. C We next address Harvest’s claims. Harvest argues that his termination was actually retaliation for his claim of sexual harassment, in violation of Title VII. He also argues that Aloha was negligent by unreasonably failing to “provide [him] with a safe and secure workplace free from discrimination based on sex and retaliation.” We take each claim in sequence. 1 Harvest first asserts that he was actually terminated in retaliation for complaining about sexual harassment in violation of Title VII. If Harvest can establish a prima facie case by showing that: 1) he engaged in a protected activity; 2) he suffered an adverse employment decision; and 3) there was a causal link between the protected activity and the adverse employment decision, see Yarbzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987), then McDonnell Douglas burden-shifting is appropriate. See Tarin v. County" }, { "docid": "22134069", "title": "", "text": "it is so one-sided that one party must prevail as a matter of law); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (stating that movant’s burden is to show that there is an absence of evidence to support the non-moving party’s case); Cities Serv., 391 U.S. at 288-90, 88 S.Ct. 1575 (concluding that summary judgment was appropriate in the absence of any significant probative evidence tending to support the complaint). Accordingly we conclude the district court’s grant of summary judgment in favor of United on this issue was premature. IV. Disparate Treatment Ms. Bullington next asserts that the district court erred in granting summary judgment on her disparate treatment claims. Disparate treatment claims involve “the most easily understood type of discrimination” in which an employer treats an individual less favorably than others because of her protected status. International Bhd. of Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. 1843. Because disparate treatment is a form of intentional discrimination, the plaintiff must prove that her employer acted with a discriminatory intent or motive. See Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1424 (10th Cir.1993). The basic allocation of burdens for a disparate treatment claim is set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, Ms. Bullington has the initial burden of establishing a prima facie case of discrimination, which in an ADEA or Title VII case requires her to show: “(1) she is a member of the class protected by the statute; (2) she suffered an adverse employment action; (3) she was qualified for the position at issue; and (4) she was treated less favorably than others not in the protected class.” Sanchez v. Denver Pub. Schls., 164 F.3d 527, 531 (10th Cir.1998). If she establishes a 'prima facie case, the burden shifts to United to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. 1817. If United offers a legitimate, nondiserimina-tory reason for its actions, the burden" }, { "docid": "13523804", "title": "", "text": "and retaliation (based on the denial of her office request). Lockridge also brought a hostile work environment claim, relying on all of the acts discussed above. The University removed the case to federal court and, in due time, moved for summary judgment, which was granted. This appeal ensued. II. We review a district court’s grant of summary judgment de novo. Rodi v. S. New Eng. Sch. of Law, 532 F.3d 11, 15 (1st Cir.2008). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A. Gender discrimination Title VII prohibits employers from discriminating against an employee with respect to her compensation on the basis of gender. 42 U.S.C. § 2000e-2(a)(l). Here, Lockridge claims that the University denied her a pay raise because she was a woman. Because Lockridge failed to proffer any direct evidence of gender discrimination, her claim is generally governed by the burden shifting scheme set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Garcia v. Bristol-Myers Squibb Co., 535 F.3d 23, 31 n. 2 (1st Cir.2008). Under this scheme, a plaintiff-employee must first establish a prima facie case of gender discrimination. Kosereis v. Rhode Island, 331 F.3d 207, 212 (1st Cir.2003). The elements of the prima facie case vary according to the nature of the plaintiffs claim, but the plaintiff must show, among other things, that she suffered an adverse employment action. Garcia, 535 F.3d at 31 n. 2. If the plaintiff establishes this prima facie case, the burden of production — but not the burden of persuasion — shifts to the employer, who must articulate a legitimate, non-discriminatory reason for the adverse employment action. See id. If the employer does so, the focus shifts back to the plaintiff, who must then show, by a preponderance of the evidence, that the employer’s articulated reason for the adverse employment action is" }, { "docid": "23145084", "title": "", "text": "fact based upon the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits. Fed.R.Civ.P. 56(c). Reliance on “mere pleadings” will not suffice to discharge the non-movant’s burden. Fed.R.Civ.P. 56(c) & (e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). “If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. Furthermore, Rule 56(c) requires entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial. The moving party is ‘entitled to a judgment as a matter of law* because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552. Title VII claims are evaluated under the “burden shifting” analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). This framework is also appropriate for evaluating claims under the Missouri Human Rights Act. Midstate Oil Co. v. Missouri Comm’n on Human Rights, 679 S.W.2d 842, 845-46 (Mo.1984) (en banc). In a Title VII action, the plaintiff carries the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. “The burden then must shift to the employer to articulate some legitimate, nondiseriminatory reason for the employee’s rejection.” Id. If the employer articulates a legitimate reason for the employee’s rejection, the burden then shifts back to the employee to show that the employer’s justification is a pretext. Id. A. Title YII & the Missouri Human" }, { "docid": "22914116", "title": "", "text": "to follow, but because [Mr. Young] could not have reasonably relied on the statement [allegedly made during] training that the only terminable offense was sleeping on the job.” Id. at 276. II. We review the district court’s grant of summary judgment de novo. See Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir.2004). 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 judgment as a matter of law.” Fed.R.Civ.P. 56(c). In conducting our analysis, we view all of the facts.in the light most favorable to the non-movant and draw all reasonable inferences from the record in favor of the non-moving party. See Stover, 382 F.3d at 1070. A. Where, as here, a Title VII plaintiff relies on indirect or circumstantial evidence to show discrimination, we examine the claim under the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir.2000). Under McDonnell Douglas, the plaintiff carries the initial burden of establishing a prima facie case of racial discrimination. See Kendrick, 220 F.3d at 1226 (discussing McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. 1817). Once the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate some legitimate, non-discriminatory reason for the adverse employment action. Id. If the defendant makes this showing, the burden then shifts back to the plaintiff to show that the defendant’s proffered justification is pretextual. Id. The parties agree that Mr. Young has made out a prima facie case of race discrimination and that Dillon has put forth a legitimate, non-discriminatory reason for Mr. Young’s termination. See Appellant’s Br. at 25-29; Appellee’s Br. at 22-23. Thus, all that remains before us is to decide whether a genuine issue of material fact exists as to whether Dillon’s proffered reason for discharging Mr. Young was pre-textual. That is" }, { "docid": "22145835", "title": "", "text": "any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On a motion for summary judgment, a court must review the facts in the light most favorable to the non-movant. Walker v. Thompson, 214 F.3d 615, 624 (5th Cir.2000). In this case, we must decide whether the district court correctly determined that Price had failed to present evidence creating a genuine issue of material fact sufficient to defeat FedEx’s motion for summary judgment. Claims of racial discrimination based only on circumstantial evidence are evaluated under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Given, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this three-part scheme, a plaintiff must first establish a prima facie case of discrimination by showing: (1) he belongs to a protected group; (2) he was qualified for the position sought; (3) he suffered an adverse employment action; and (4) he was replaced by someone outside the protected class. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If a plaintiff is successful in establishing his prima facie case, a presumption of discrimination arises and in the second step of the analysis, the burden shifts to the defendant to produce a legitimate, nondiscriminatory justification for its actions. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The defendant’s burden during this second step is satisfied by producing evidence, which, “taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.” Hicks, 509 U.S. at 509, 113 S.Ct. 2742 (emphasis in original). If the defendant articulates a reason that can support a finding that its actions were nondiscriminatory, the mandatory inference of discrimination created by the plaintiffs prima facie case drops out. Hicks, 509 U.S. at 510-11, 113 S.Ct. 2742. Finally, in the third stage of the burden-shifting framework, the" }, { "docid": "18968396", "title": "", "text": "Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review de novo a magistrate judge’s summary-judgment decisions, drawing all reasonable inferences in the non-moving party’s favor. Fox v. Transam Leasing, Inc., 839 F.3d 1209, 1213 (10th Cir. 2016) (treating cross-motions for summary judgment separately and viewing the evidence in the light most favorable to each non-moving party). A. Title VII and Equal Protection Discrimination Claims. In McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court set forth a three-part burden-shifting framework to analyze circumstantial-evidence Title VII discrimination claims. The McDonnell Douglas framework applies as well to § 1983 claims based on allegations of discrimination under the Equal Protection Clause. English v. Colo. Dep’t of Corrs., 248 F.3d 1002, 1007 (10th Cir. 2001). Under this framework, a plaintiff must first establish a pri-ma facie case of discrimination by demonstrating that he is a member of a protected class and suffered an adverse employment action under circumstances giving rise to an inference of discrimination. DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir. 2017). In a reverse-gender-discrimination case, a plaintiff “must, in lieu of showing that he belongs to a protected group, establish background circumstances that support an inference that the defendant is one of those unusual employers who discriminates against the majority.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1201 (10th Cir. 2006) (internal quotation marks omitted). If the plaintiff establishes a prima facie case of discrimination, the defendant must then articulate a legitimate, nondiscriminatory reason for the adverse employment action. DePaula, 859 F.3d at 970. This circuit has held that “[t]he defendant’s burden is exceedingly light, as its stated reasons need only be legitimate and nondiscriminatory on their face.” Id. (internal quotation marks and citation omitted). If the defendant carries this burden, the burden shifts back to the plaintiff to demonstrate by a" }, { "docid": "22011036", "title": "", "text": "that Pepsi violated the Equal Pay Act. Pepsi failed to adequately assert an affirmative defense to establish that no genuine issues of material fact exist or that Pepsi is entitled to summary judgment as a matter of law. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (quoting Fed. R.Civ.P. 56(e)). Pepsi’s motion for summary judgment on this count is denied. 3. Title VII claims When a plaintiff does not present direct evidence of discriminatory animus, courts analyze a plaintiffs claims pursuant to a pretext theory of discrimination. In Title VII employment discrimination actions invoking the pretext theory of discrimination, courts apply the McDonnell Douglas burden shifting analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Pursuant to McDonnell Douglas, a plaintiff has the initial burden to establish a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. To establish a prima facie case of discrimination, plaintiff must provide evidence that; (1) She was a member of a protected class; (2) she was qualified for the position(s) applied for; and (3) another person outside of the protected class was treated more favorably. Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 539 (3d Cir.2006) (citing McDonnell Douglas, 411 U.S. 792 at 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668). If plaintiff succeeds in establishing her prima facie case, the burden shifts to defendant employer to proffer “legitimate non-discriminatory” reason for its actions. See Woodson v. Scott Paper Co., 109 F.3d 913, 920 n. 2 (3d Cir.1997). If defendant meets this burden, the burden again shifts to plaintiff to demonstrate, by a preponderance of the evidence, that the employer’s rationale is pretextual. Id. at 804, 93 S.Ct. 1817. To do this, plaintiff must “point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994). If a defendant carries" }, { "docid": "6902823", "title": "", "text": "articulated a legitimate non-discriminatory reason for discharging her and that she had failed to present sufficient evidence to establish that the County’s reason was pre-textual for discrimination. II. We review the district court’s grant of summary judgment de novo. See Christopher v. Adam’s Mark Hotels, 137 F.3d 1069, 1071 (8th Cir.1998). Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We utilize the well-known burdenshjfting scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to analyze claims brought under the ADA. See Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1205 (8th Cir.1997). The MHRA parallels the ADA and MHRA claims also are analyzed using the McDonnell Douglas burden-shifting scheme. See id. at 1205-06; Roberts ex rel. Rodenberg-Roberts v. Kindercare Learning Ctrs., Inc., 86 F.3d 844, 846 n. 2 (8th Cir.1996) (per curiam). Under this scheme, a plaintiff first must establish a prima facie case of discrimination by “showing] that she is disabled within the meaning of the [ADA]; that she is qualified to perform the essential functions of her job with or without reasonable accommodation; and that she suffered an adverse employment action because of her disability.” Christopher, 137 F.3d at 1072 (quotations and alterations omitted). Once the plaintiff establishes her prima facie case, “the burden shifts to the employer to articulate some legitimate, non discriminatory reason for its actions.” Id. If the employer meets this burden, the plaintiff then bears the burden of demonstrating that the employer’s stated reason is pretextual for discrimination. See id. At all times, the plaintiff bears the ultimate burden of demonstrating that discrimination was the real reason for the employer’s actions. See Snow, 128 F.3d at 1206. Summary judgment is proper if a plaintiff fails to establish any element of her prima facie case. See Weber v. American Express Co., 994 F.2d 513, 515-16 (8th Cir.1993) (“if the plaintiff fails to establish a factual dispute on each element of" }, { "docid": "6601405", "title": "", "text": "of Employment Sec., 972 F.2d 893, 895 (8th Cir.1992), cert. denied, 508 U.S. 906, 113 S.Ct. 2332, 124 L.Ed.2d 244 (1993). Summary judgment is appropriate when the movant establishes “that there are no material facts in [genuine] dispute and that, as a matter of law, the movant is entitled to judgment.” Oldham v. West, 47 F.3d 985, 988 (8th Cir.1995). We proceed with caution when deciding whether summary judgment is appropriate in employment discrimination cases because intent is usually a central issue. See Gill v. Reorganized Sch. Dist. R-6, Festus, Mo., 32 F.3d 376, 378 (8th Cir.1994). This cautionary approach, however, “cannot and should not be construed to exempt” from summary judgment employment discrimination cases involving intent. Krenik v. County of he Sueur, 47 F.3d 953, 959 (8th Cir.1995). If there is no genuine issue about the employer’s discriminatory intent, to the extent intent is material, then summary judgment may be appropriate. The ADA prohibits employers from discriminating “against a qualified individual with a disability because of [that] disability.” 42 U.S.C. § 12112(a). A qualified individual with a disability is a person “with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position.” Id. § 12111(8). To establish a claim of intentional discrimination under the ADA, we employ the burden-shifting scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). See Aucutt v. Six Flags Over Mid-Am., Inc., 85 F.3d 1311, 1318 (8th Cir.1996). First, the plaintiff must establish a prima facie case of discrimination. See McDonnell Douglas, 411. U.S. at 802, 93 S.Ct. at 1824. To establish a prima facie case under the ADA, a plaintiff “must show that she is disabled within the meaning of the Act; [that] she is qualified to perform the essential functions of her job with or without reasonable accommodation; and [that] she suffered an adverse employment action because of her disability.” Webb v. Mercy Hosp., 102 F.3d 958, 959-60 (8th Cir.1996). After a plaintiff establishes a prima facie ease, the burden shifts to the employer" }, { "docid": "23106540", "title": "", "text": "Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Fed.R.Civ.P. 56. In our de novo review, we also determine “whether the district court correctly applied the relevant substantive law.” Stout v. Potter, 276 F.3d 1118, 1121 (9th Cir.2002). Analysis I. Application of McDonnell Douglas Burden-Shifting Regime to Noyes’ Title Yii Disparate Treatment Claim The Supreme Court’s landmark case regarding employment discrimination claims brought under Title VII, McDonnell Douglas v. Green, sets forth a proof framework with two distinct components: (1) how a plaintiff may establish a prima facie case of discrimination absent direct evidence, and (2) a burden-shifting regime once the prima facie case has been established. 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In the summary judgment context, the plaintiff bears the initial burden to establish a prima facie case of disparate treatment. Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir.2000). If the plaintiff succeeds in showing a prima facie case, the burden then shifts to the defendant to articulate a “legitimate, nondiscriminatory reason” for its employment decision. Id. at 1123-24. Should the defendant carry its burden, the burden then shifts back to the plaintiff to raise a triable issue of fact that the defendant’s proffered reason was a pretext for unlawful discrimination. Id. at 1124. The central dispute in this case is whether Noyes’ evidence was sufficient to raise a triable issue of fact as to pretext. A. Noyes’ Prima Facie Case A prima facie case of employment discrimination may be established through direct evidence of discriminatory intent or a presumption arising from a showing of objective factors such as those outlined in McDonnell Douglas and its progeny. See 411 U.S. at 802, 93 S.Ct. 1817. In Godwin v. Hunt Wesson, Inc., 150 F.3d 1217 (9th Cir.1998), we adapted McDonnell Douglas to the failure to promote context, holding that a prima facie case requires the employee to show: “(1) she belongs to a protected class, (2) she was performing according to her employer’s legitimate expectations, (3) she suffered an adverse employment action," }, { "docid": "17075995", "title": "", "text": "his implied-infaet employment contract by terminating his employment without warning. He later amended his complaint to include a claim under the ADA. The district court granted summary judgment to Pathfinder on all three claims. This appeal followed. II. ANALYSIS A. Standard of review We review a district court’s grant of summary judgment de novo. E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1037 (10th Cir.2011). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute as to a material fact “exists when the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.” Zwygart v. Bd. of Cnty. Comm’rs, 483 F.3d 1086, 1090 (10th Cir. 2007) (internal quotation marks omitted). B. Carter’s ADA claim Carter argues that Pathfinder discriminated against him based on his disability, in violation of the ADA’s anti-discrimination provision. See 42 U.S.C. § 12112(a). We apply the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to ADA discrimination claims. C.R. England 644 F.3d at 1038. Under this framework, Carter bears the initial burden of establishing a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If he is able to make such a showing, the burden would shift to Pathfinder “to articulate some legitimate, nondiscriminatory reason” for its actions. See id. Carter would then bear the ultimate burden of showing that Pathfinder’s proffered reason is in fact a pretext designed to mask discrimination. See id. at 804, 93 S.Ct. 1817. 1. Prima facie case We begin our analysis by determining whether Carter has produced enough evidence to allow a reasonable jury to conclude that he has established a prima facie case of discrimination. This burden is “not onerous.” Plotke v. White, 405 F.3d 1092, 1099 (10th Cir.2005) (internal quotation marks omitted). Carter must show that, at the time" } ]

[ { "docid": "11541782", "title": "", "text": "not less than thirty (30) minutes ... ”). See Compl. at ¶ 26. In response, Defendant argues that the IWC allows an employee and employer to waive the right to a meal period if the work day is only six hours long. IWC Wage Order No. 5-2001, § 11(A) (“... when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and employee”). Defendant argues that Plaintiffs waived the right to a meal period for five hour work periods in the relevant CBA. (See Local 11 CBA attached to Declaration of Lisa Marie Smith, Ex. 1 at date stamped page no. 0043, (“all employees shall be allowed thirty (30) minutes to eat one meal during any shift that is over six (6) hours.”)) Thus, argues Defendant, because whether or not Plaintiffs were entitled to a meal period for a five hour work period or whether they waived this right depends on an interpretation of the Local 11 CBA, the claims are preempted. The state law statutory claims asserted by Plaintiffs cannot be bargained away. See Compl. at 26-27; Cal. Labor Code § 219; Lujan v. S. Cal. Gas Co., 96 Cal.App.4th 1200, 1211, 117 Cal.Rptr.2d 828 (2002) (employer and a union cannot bargain away an employee’s rights under state wage statutes, including IWC Wage Orders). Moreover, Plaintiffs’ claims by themselves do not require an analysis of the CBA. Only Defendant’s waiver defense requires reference to the CBA, which does not trigger Section 301 preemption. Cramer, 255 F.3d at 692. Thus Plaintiffs’ case is distinguishable from that of the plaintiffs in Firestone, which is relied upon by Defendant. The overtime claims in Firestone required an analysis of whether the alternative overtime payment structure provided by the CBA satisfied the requirements of California state law. Firestone v. S. Cal. Gas Co., 219 F.3d 1063, 1066 (9th Cir.2000) (“parties therefore disagree on the meaning of terms in the collective bargaining agreement for purposes of California law”). Accordingly, based in the well-pleaded complaint doctrine as set forth" } ]

[ { "docid": "5061711", "title": "", "text": "“The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law,” id., and existence of federal jurisdiction is determined by the complaint at the time of removal. Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir.1979). Foster Farms argued that Section 301 of the LMRA provides a “complete preemption” of Ms. Avalos’ state law claims to establish federal jurisdiction over this action. Section 301 of the LMRA confers original jurisdiction in federal district courts. 29 U.S.C. § 185(a); Livadas v. Bradshaw, 512 U.S. 107, 121-24, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994). Section 301’s “complete preemption” covers “most state-law actions that require interpretation of labor agreements.” Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102 (9th Cir.2000). The “preemptive force of section 301 is so powerful as to displace entirely any state cause of action for violation of contracts between an employer and an labor organization.” Franchise Tax Bd., 463 U.S. at 23, 103 S.Ct. 2841 (1993) (internal quotations omitted). Section 301 governs not only claims founded directly on the rights created by the CBA, but also on those claims that are “substantially dependent” on the analysis of the CBA. Caterpillar, 482 U.S. at 394, 107 S.Ct. 2425. Once preempted, “any claim purportedly based on [a] ... state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Id. at 393, 107 S.Ct. 2425. On the other hand, mere consultation with the CBA during the course of litigation does not justify preemption. Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 690-91 (9th Cir.2001). Thus, Section 301 does not preempt state law claims that can be resolved without interpreting a CBA. Id. at 690. “[I]t is the legal character of a claim as independent of rights under the” CBA “that decides whether a state cause of action may go forward.” Id. The Court employs a two-step inquiry to determine whether Section 301 preempts a state law claim. First, the Court considers “whether the asserted cause of action involves a right conferred" }, { "docid": "581842", "title": "", "text": "that relates in some way to a provision in a collective-bargaining agreement.” Id. The linchpin of preemption analysis is whether the terms of a collective bargaining agreement must be interpreted in order to evaluate a plaintiffs state law claim. See Cramer v. Consolidated Freightways, 255 F.3d 683, 691-92 (9th Cir.2001) (holding that state law claims are preempted where “adjudication of the claim must require interpretation of a provision of the CBA”). Preemption doctrine has been strongly applied where state law claims were brought by employees governed by a collective bargaining agreement with terms relevant to the state law right asserted, and less strongly where the facts necessary to prove the claim derive from outside a governing collective bargaining agreement. Compare Int’l Bro. of Elec. Workers v. Hechler, 481 U.S. 851, 862, 107 5.Ct. 2161, 95 L.Ed.2d 791 (1987) (holding that a state tort law claim against a union for failing to properly train employees and guard against unsafe working conditions was preempted because the union’s collective bargaining agreement with plaintiffs employer governed whether the union assumed the duty of care which it allegedly breached) with Ramirez v. Fox Television Inc., 998 F.2d 743, 748 (9th Cir.1993) (holding that state law discrimination claims were not preempted, even where reference to a collective bargaining agreement would be necessary, because the claim would not require interpretation of that agreement). The Ninth Circuit has formulated the clear standard that “the need to interpret the [collective bargaining agreement] must inhere in the nature of the plaintiffs claim” in order that preemption apply, or, to put it differently, a claim must be interpreted with reference to rights and duties established by the labor agreement. Cramer, 255 F.3d at 691-92. Interpretation of the labor agreement, as opposed to merely referencing or considering the document, is the key requirement of preemption. Ramirez, 998 F.2d at 748. Local 2’s action presents an unusual issue not directly addressed by existing case law. Plaintiffs claim against Heritage does not allege a violation of the terms of a collective bargaining agreement. Instead, it alleges that Heritage entered into a separate contract with" }, { "docid": "12169728", "title": "", "text": "§§ 151 et seq.f, Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 201, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983) (noting, in finding a preemption claim ripe for review, that “[t]he question of pre-emption is predominantly legal”). This is not the case, however, for preemption questions under the RLA, or its parallel provision in § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. See Hawaiian Airlines, 512 U.S. at 260, 114 S.Ct. 2239 (describing these standards as “virtually identical”). As explained by this Court in In re Bentz Metal Prods Co., the question of whether a state law is preempted by virtue of a CBA, “requires [a] case-by-case factual analysis to determine the extent to which a state law claim will require interpretation of a CBA.” 253 F.3d at 285 (discussing preemption under § 301 oftheLMRA). Here, the record is not sufficiently developed for this Court to engage in this “case-by-case factual analysis.” This Court’s precedent reflects that state law is only preempted if the resolution of the claim “is dependent upon an interpretation of the collective bargaining agreement’s terms.” Miller, 525 F.3d at 524. At this stage of the proceedings, all that is clear is that the CBAs will have to be consulted to calculate the “hours worked” and “regular rate” of pay under the Illinois Minimum Wage Act. While this information was sufficient for the district court to determine that computing these values “requires interpretation and application of various provisions contained in the CBAs,” Wis. Cent. Ltd., 516 F.Supp.2d at 924, the parties have not yet staked out a position for the record as to what these CBA provisions mean, making it impossible to determine at this stage of the proceedings whether a disagreement will exist that will require an arbitrator, under the terms of the RLA, to engage in this CBA interpretation. As part of its finding that Illinois’s overtime provision was preempted, the district court incorrectly placed reliance upon language in In re Bentz Metal Prods. Co., which states that, “[i]f the entitlement to wages" }, { "docid": "11541786", "title": "", "text": "to determine unpaid compensation for missed breaks. The present case is very similar to Gregory v. SCIE, LLC, in which the Ninth Circuit reversed a district court’s finding of preemption of state law claims that involved “not how overtime rates are calculated but whether the result of the calculation complies with California law.” 317 F.3d 1050, 1053 (9th Cir.2003). The fact that overtime was calculated according to the terms of the CBA did not mandate Section 301 preemption in Gregory. Id. Similarly here, Plaintiffs have'alleged noncompliance with non-negotiable state wage laws requiring meal and rest breaks. See Cal. Lab.Code § 219. The calculation of damages may require reference to wage payment calculations dictated by the CBA, Liradas, 512 U.S. at 125, 114 S.Ct. 2068, as well as factual evidence such as time worked by employees and how they were compensated, but not interpretation of the CBA. The fact that Local 11’s CBA considers breaks as paid time may mean that Plaintiffs’ damages will be adjusted accordingly, but Defendant has not explained how this fact requires any interpretation of the CBA. Accordingly, the Court finds that Plaintiffs’ claims for unpaid compensation for missed breaks are not preempted by Section 301 of the LMRA. C. Whether Plaintiffs’ Claims Under Cal. Bus. & Prof.Code Section 17200 are Preempted When a district court remands a case to state court based on a preemption analysis of the relevant wage claims, it is unnecessary to conduct an analysis of related state law claims, including claims pursuant to Section 17000 of the California Business & Professions Code. See Gregory, 317 F.3d at 1051. D. Whether Plaintiffs’ Request for Attorneys’ Fees Should be Granted “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). The Ninth Circuit does not require a finding of bad faith and awards fees even where a defendant’s removal was “fairly supportable” but wrong as a matter of law. Balcorta, 208 F.3d at 1106 n. 6; Moore v. Permanente Medical Group, 981 F.2d 443, 448" }, { "docid": "5061715", "title": "", "text": "resolution of Ms. Avalos’ claims requires a court to interpret this provision to determine what proper compensation means. Ms. Avalos maintains that her state law causes of action for violation of the California Labor Code do not arise from or call into question any CBA terms, compensations rates, or formulae. After considering the parties’ arguments and the applicable legal authority, the magistrate judge found that Foster Farms failed to carry its heavy burden to establish that the resolution of Ms. Avalos’ claims requires interpretation of the CBA. Having considered the magistrate judge’s thoughtful and thorough opinion, this Court is not left with a firm conviction that an error was made. To the contrary, this Court agrees that Foster Farms failed to establish that federal jurisdiction exists to remove this action to this Court. While noting its concerns, the magistrate judge reasonably distinguished Firestone v. Southern Cal. Gas Co., 219 F.3d 1063, 1065 (9th Cir.2000), the legal authority upon which Foster Farms primarily relied. In Firestone, the issue was whether the compensation received by employees under a complex formula constituted the premium wage rates required by California law. Id. at 1066-67. That issue could not be resolved without interpreting the complex premium pay structure contained in the CBA. Id. Here, the CBA does not contain a complex wage structure that requires analysis to resolve the claims. Instead, the issue presented is more similar to that in Gregory v. SCIE, LLC., 317 F.3d 1050 (9th Cir.2003). In Gregory, the Court found that Section 301 did not preempt similar claims: Even assuming the CBA provides premium wage rates for over-time, the question here is that raised by [Califor nia Labor Code] Section 510: whether when overtime is paid under the DBA it is paid for all overtime hours worked, as required by California law. This is a question of interpretation of state law, not of the DBA, that we leave to the state court. Id. at 1053 (emphasis in original). Similar to the plaintiffs in Gregory, Ms. Avalos claims that she was not paid for all hours worked, all overtime hours worked, and" }, { "docid": "5061712", "title": "", "text": "Section 301 governs not only claims founded directly on the rights created by the CBA, but also on those claims that are “substantially dependent” on the analysis of the CBA. Caterpillar, 482 U.S. at 394, 107 S.Ct. 2425. Once preempted, “any claim purportedly based on [a] ... state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Id. at 393, 107 S.Ct. 2425. On the other hand, mere consultation with the CBA during the course of litigation does not justify preemption. Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 690-91 (9th Cir.2001). Thus, Section 301 does not preempt state law claims that can be resolved without interpreting a CBA. Id. at 690. “[I]t is the legal character of a claim as independent of rights under the” CBA “that decides whether a state cause of action may go forward.” Id. The Court employs a two-step inquiry to determine whether Section 301 preempts a state law claim. First, the Court considers “whether the asserted cause of action involves a right conferred upon an employee by virtue of state law, not by a CBA.” Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir.2007). “If the right exists solely as a result of the CBA, then the claim is preempted” and the Court’s analysis ends. Id. If the claimed right exists “independently of the CBA,” the Court then considers whether the right is “substantially dependent on analysis of’ a CBA. Id. The parties do not dispute seriously whether the asserted causes of action involved rights conferred by virtue of California law. Ms. Avalos’ state law claims are based on her position that she (and others similarly situated) have not been compensated for, inter alia, time spent donning and doffing and walking to and from the line. California law protects workers and provides Ms. Avalos with independent claims for unpaid wages, unpaid overtime, denied meal and rest periods, and waiting time penalties. See California Labor Code Section 204; California Labor Code section 510(a); IWC Wage Order 4-2001(3)(A)(1), 8 CaLCode regs, section 11040, California Labor Code section 1194(a);" }, { "docid": "22186606", "title": "", "text": "Century-Fox Film Corp., 208 F.3d 1102, 1109-10 (9th Cir.2000) (“A court may be required to read and apply these provisions [of the CBA] in order to determine whether an employee was discharged from his ‘call’ at the end of his shift, but no interpretation of the provisions would be necessary”) with Firestone v. Southern California Gas Co., 219 F.3d 1063, 1067 (9th Cir.2000) (“[I]f California law were to apply, the parties negotiating the agreement would not know whether the employer’s overtime obligations were defined by the contract or not, depending on which rate a court determined was the ‘regular’ rate under the California law. The claim is preempted”). In its October 25, 2004 order denying Soremekun’s motion to remand, the court held that his Labor Code claim was not preempted by the LMRA, stating: “Under Balcorta, Soremekun’s Labor Code § 202 claim is not preempted because the statute confers a right that is non-negotiable. More fundamentally, the court need not interpret the CBA to determine whether Soremekun received wages he was owed within 72 hours of resigning his employment with Thrifty.” See id. at 1108 (“In order to help preserve state authority in areas involving minimum labor standards, the Supreme Court has distinguished between claims that require interpretation or construction of a labor agreement and those that require a court simply to ‘look at’ the agreement”); id. (“We have stressed that, in the context of § 301 complete preemption, the term ‘interpret’ is defined narrowly — it means something more than ‘consider,’ ‘refer to,’ or ‘apply’ ”). While the court will have to “look at” the CBA to determine what wages were owed, it will not have to interpret the agreement to determine if the amounts due were paid within 72 hours of Soremekun’s resignation. See id. (“The measure of timeliness under § 201.5 could not be more plain: once an employee covered by the law is discharged, state law requires payment ‘within 24 hours.’ On its face, § 201.5 requires nothing more than a clock or a calendar to determine the timeliness of Fox’s payment — the law does" }, { "docid": "5061704", "title": "", "text": "Foster Farms for unpaid wages, unpaid overtime, denied meal and rest periods, and waiting time penalties, including: 1. Failure to compensate for all hours worked, in violation of California Labor Code section 204; 2. Failure to Pay Overtime Wages, in violation of California Labor Code section 501(a); IWC Wage Order 4-2001(3)(A)(1), 8 California Code of Regulations section 11040 and California Labor Code section 1194(a); 3. Failure to Provide Meal and Rest Periods, in violation of California Labor Code section 226.7 and 512 and applicable wage orders; 4. Unpaid Wages and Waiting Time Penalties, in violation of California Labor Code sections 201-203; 5. Failure to Itemize Pay Stubs Properly, in violation of California Labor Code sections 226(a), (e), and (g); and 6. Unfair Business Practices, in violation of California Business and Professions Code sections 17200 et seq. Ms. Avalos asserts no federal causes of action, and the parties do not dispute that diversity of citizenship does not exist. Ms. Avalos bases her state law claims on the following facts: Ms. Avalos is a production-line employee at Foster Farms’ poultry processing plant. Ms. Avalos alleges that Foster Farms fails to provide their non-exempt employees with meal and rest periods to which they are entitled. In addition, Ms. Avalos alleges that Foster Farms fails fully and properly to compensate her and others similarly situated for pre- and post-production-line activities that are necessary and integral to their employment responsibilities, including donning and doffing protective gear and equipment, cleaning and sanitizing equipment, traveling to and from the production line, working on knife maintenance equipment, and waiting in line to receive required knives, supplies, tools and equipment. Ms. Avalos further challenges Foster Farms’ policy of charging production-line employees for the purported cost of protective clothing and equipment. Foster Farms removed this case to this Court on April 14, 2011. Foster Farms asserted jurisdiction was proper pursuant to Section 301 of the LMRA. Foster Farms avers that Ms. Avalos and the proposed class members are members of the United Food and Commercial Workers Union (“UFCW”) whose employment terms and conditions are governed by a CBA between Foster" }, { "docid": "17825891", "title": "", "text": "to represent a class of the defendants’ current and former employees and bring employment claims. Seventh Am. Compl. (Compl.) 11-25, ECF No. 101. Their claims arise from three core allegations: that the defendants did not pay them for time spent putting on and taking off mandatory personal protective equipment, that is “donning and doffing” the equipment, see, e.g., id. ¶¶31, 33; that the defendants did not allow them rest breaks and meal breaks as required by California labor law, see, e.g., id. ¶¶ 33, 47-50; and that they did not receive paychecks in the form and at the time California law requires, see, e.g., id. ¶¶ 68, 76. Specifically, the plaintiffs’ plead eight claims: 1. For compensation for all hours worked under California Labor Code § 204 and California Code of Regulations title 8, § 11040(11)(A), Compl. ¶¶ 29-35; 2. For overtime wages under California Labor Code §§ 200, 510(a), and 1194(a) and California Code of Regulations title 8, § 11040(11)(A), Compl. ¶¶ 36-45; 3. For failure to offer duty-free meal and rest periods under California Labor Code §§ 226.7 and 512, Compl. ¶¶46-51; 4. For failure to offer certain 30-minute meal and 10-minute rest breaks under California Labor Code § 512 and California Code of Regulations title 8, § 11080, Compl. ¶¶ 52-61; 5. For unpaid wages and waiting time penalties under California Labor Code §§ 201-203, Compl. ¶¶ 62-72; 6. For failure to properly itemize pay stubs in violation of California Labor Code §§ 226(a) and (e), Compl. ¶¶ 73-78; 7. For violation of California’s Unfair Competition Law (UCL), Business and Professional Code §§ 17200 et seq., Compl. ¶¶ 79-92; and 8. To enforce California’s Private Attorney General Act (PAGA), California Labor Code §§ 2698-2699.5, Compl. ¶¶ 93-96. The court has previously issued several orders, which limit the scope of the court’s inquiry in response to this motion. On October 15, 2013, the court granted TFP’s motion to dismiss plaintiff Morris’s fifth claim and the seventh claim insofar as it was based on the fifth. Order, ECF No. 76. On March 28, 2014, the court granted TFP’s motion" }, { "docid": "5061713", "title": "", "text": "upon an employee by virtue of state law, not by a CBA.” Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir.2007). “If the right exists solely as a result of the CBA, then the claim is preempted” and the Court’s analysis ends. Id. If the claimed right exists “independently of the CBA,” the Court then considers whether the right is “substantially dependent on analysis of’ a CBA. Id. The parties do not dispute seriously whether the asserted causes of action involved rights conferred by virtue of California law. Ms. Avalos’ state law claims are based on her position that she (and others similarly situated) have not been compensated for, inter alia, time spent donning and doffing and walking to and from the line. California law protects workers and provides Ms. Avalos with independent claims for unpaid wages, unpaid overtime, denied meal and rest periods, and waiting time penalties. See California Labor Code Section 204; California Labor Code section 510(a); IWC Wage Order 4-2001(3)(A)(1), 8 CaLCode regs, section 11040, California Labor Code section 1194(a); California Labor Code sections 226.7 and 512; California Labor Code sections 201-203; California Labor Code section 226(a), (e), and (g); and California Business and Professions Code sections 17200 et seq. These rights are independent of the CBA. Thus, the Court’s inquiry focuses on whether the claimed rights are “substantially dependent on analysis” of the CBA. “Tracing the line of demarcation between preempted claims and those that survive section 301’s reach—is not a take that always lends itself to analytical precision.” Burnside, 491 F.3d at 1060 (internal quotations and citations omitted). If the Court simply “looks to” the CBA, the state law claims are not preempted; if the Court must “interpret” the CBA, then the claims are preempted. This distinction is “not always clear or amendable to a bright line test.” Cramer, 255 F.3d at 691. Section 7(H)(3) of the applicable CBA undisputably addresses compensation for donning and doffing time. Specifically, according to Section 7(H)(3), the parties to the CBA agree that the CBA “properly compensates employees” for donning and doffing time. Foster Farms argues that" }, { "docid": "5061703", "title": "", "text": "ORDER ON REQUEST FOR RECONSIDERATION (Doc. 31) LAWRENCE J. O’NEILL, District Judge. INTRODUCTION Defendant Foster Poultry Farms (“Foster Farms”) moves for reconsideration of the July 1, 2011 Order Granting Plaintiffs’ Motion to Remand, issued by United States Magistrate Judge Michael J. Seng (“magistrate judge”). Foster Farms argues that the Magistrate Judge erred as a matter of law to conclude that this Court lacks subject matter jurisdiction over this action. Specifically, Foster Farms argues that federal jurisdiction exists pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. 185(a) (“LMRA”), because plaintiff Asusena Avalos’ (“Ms. Avalos’ ”) state law claims require interpretation of a term in a Collective Bargaining Agreement (“CBA”) between Ms. Avalos and Foster Farms. Having considered the parties’ arguments and the applicable legal authorities, this Court AFFIRMS the magistrate judge’s decision to remand this action. BACKGROUND On March 10, 2011, Ms. Avalos initiated this wage and hour class action, on behalf of herself and others similarly situated, in the Fresno County Superior Court. Ms. Avalos alleges six causes of action against Foster Farms for unpaid wages, unpaid overtime, denied meal and rest periods, and waiting time penalties, including: 1. Failure to compensate for all hours worked, in violation of California Labor Code section 204; 2. Failure to Pay Overtime Wages, in violation of California Labor Code section 501(a); IWC Wage Order 4-2001(3)(A)(1), 8 California Code of Regulations section 11040 and California Labor Code section 1194(a); 3. Failure to Provide Meal and Rest Periods, in violation of California Labor Code section 226.7 and 512 and applicable wage orders; 4. Unpaid Wages and Waiting Time Penalties, in violation of California Labor Code sections 201-203; 5. Failure to Itemize Pay Stubs Properly, in violation of California Labor Code sections 226(a), (e), and (g); and 6. Unfair Business Practices, in violation of California Business and Professions Code sections 17200 et seq. Ms. Avalos asserts no federal causes of action, and the parties do not dispute that diversity of citizenship does not exist. Ms. Avalos bases her state law claims on the following facts: Ms. Avalos is a production-line employee at" }, { "docid": "1789291", "title": "", "text": "U.S. 107, -, 114 S.Ct. 2068, 2078, 129 L.Ed.2d 93 (1994). Instead, as we have noted, preemption is found when a provision of the collective bargaining agreement is the subject of the dispute or the dispute is substantially dependent upon an analysis of the terms of the collective bargaining agreement. Loewen, 65 F.3d at 1423. Local 1393 argues that any federal question presented in this case arises solely as a defense to the complaint; thus, under the conflict preemption rule, no federal question jurisdiction exists and the case must be remanded to state court. The local makes much of the argument that because federal labor law creates no remedy for the late payment of compensation, the Indiana statute we mentioned has not been “replaced,” and unless such a federal remedy replaces the state law, the implications of federal law will arise only as a defense to the state law action. Local 1393 also argues that the Indiana wage payment statute confers nonnegotiable state-law rights on employers or employees independent of any right established by the CBA, which, as discussed in Allis-Chalmers, 471 U.S. at 213, 215, 105 S.Ct. at 1912, 1913, are not preempted by § 301. Judge Miller in the district court believed that the CBA required interpretation, not mere reference, to determine when the wage increases and bonuses were to be implemented and paid. He reasoned that only after interpretation of the CBA to determine when the obligation to pay the wage increases and bonuses arose would it be possible to determine whether TCI violated the statute. Judge Miller believed these determinations involved more than a mere factual inquiry and instead depended on and required interpretation of article 7 of the CBA. The state law claim, he concluded, therefore was preempted by § 301, thus conferring subject matter jurisdiction on the district court. We agree with TCI and Judge Miller that the claim made by Local 1393 requires interpretation of the CBA and that it is completely preempted by § 301. Indiana Code § 22-2-5-1 is a penal statute that is concerned with the timing of the payment" }, { "docid": "20153969", "title": "", "text": "Code. See Reynolds, 36 Cal.4th at 1088, 32 Cal.Rptr.3d 483, 116 P.3d 1162. It does not follow, as defendants contend, that defendants cannot be liable as joint employers for Labor Code violations. The Court finds that nothing in Reynolds prohibits this Court from considering whether the corporate defendants were the joint employers of plaintiffs. Indeed, post-Reynolds cases have assumed or held that status as a joint employer can give rise to liability for Labor Code violations. See, e.g., Cervantez v. Celestica Corp., 618 F.Supp.2d 1208, 1212-13 (C.D.Cal.2009); Ontiveros v. Zamora, 2009 WL 425962, at *5-6 (E.D.Cal. Feb. 20 2009); Perry v. Upper Deck Co., LLC, 2007 WL 1449797, at *4 (S.D.Cal. May 11, 2007). In any event, the parties' focus on joint employer status is misplaced. The more direct approach is to consider whether each entity controlled the performance of plaintiffs' work duties and thus qualifies for “employer” status according to the common-law definition. . Some district courts in the Ninth Circuit have noted the apparent contradiction in Williamson between its holding that the FLSA does not provide an exclusive remedy and its statement that claims directly covered by the FLSA must be brought under that statute. Reasoning that the “directly covered” language in Williamson is dictum, these courts have held that the FLSA does not preempt state-law UCL claims. See, e.g., Takacs v. A.G. Edwards & Sons, Inc., 444 F.Supp.2d 1100, 1117 (S.D.Cal.2006); Bahramipour v. Citigroup Global Markets, Inc., 2006 WL 449132, at *4 (N.D.Cal. Feb. 22, 2006); Aguayo v. Oldenkamp Trucking, 2005 WL 2436477, at *10 (E.D.Cal. Oct. 3, 2005); Barnett v. Washington Mut. Bank, FA, 2004 WL 2011462, at *6-7 (N.D.Cal. Sept. 9, 2004); see also Medina v. Chas Roberts Air Conditioning, Inc., 2006 WL 2091665, at *5-6 (D.Ariz. July 24, 2006) (holding that the FLSA does not preempt claim under Arizona statute for retaliatory discharge). While plaintiffs' tenth cause of action is for unlawful business practices in violation of California's Unfair Competition Law (the \"UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq., these authorities are not directly relevant here because defendants argue only that" }, { "docid": "22186605", "title": "", "text": "state law claims, without any guarantee that interpretation or direct reliance on the CBA terms will occur”); see also Cramer v. Consolidated Freightways, Inc., 255 F.3d 683, 691-92 (9th Cir.2001) (“Moreover, alleging a hypothetical connection between the claim and the terms of the CBA is not enough to preempt the claim: adjudication of the claim must require interpretation of a provision of the CBA. A creative linkage between the subject matter of the claim and the wording of a CBA provision is insufficient; rather, the proffered interpretation argument must reach a reasonable level of credibility.... The argument does not become credible simply because the court may have to consult the CBA to evaluate it; ‘look[ing] to’ the CBA merely to discern that none of its terms is reasonably in dispute does not require preemption”). Thus, state law claims for unpaid wages are not preempted when the court is required simply to apply the terms of a CBA; they are pre-empted only when the court must interpret the provisions of the CBA. Compare Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1109-10 (9th Cir.2000) (“A court may be required to read and apply these provisions [of the CBA] in order to determine whether an employee was discharged from his ‘call’ at the end of his shift, but no interpretation of the provisions would be necessary”) with Firestone v. Southern California Gas Co., 219 F.3d 1063, 1067 (9th Cir.2000) (“[I]f California law were to apply, the parties negotiating the agreement would not know whether the employer’s overtime obligations were defined by the contract or not, depending on which rate a court determined was the ‘regular’ rate under the California law. The claim is preempted”). In its October 25, 2004 order denying Soremekun’s motion to remand, the court held that his Labor Code claim was not preempted by the LMRA, stating: “Under Balcorta, Soremekun’s Labor Code § 202 claim is not preempted because the statute confers a right that is non-negotiable. More fundamentally, the court need not interpret the CBA to determine whether Soremekun received wages he was owed within 72 hours" }, { "docid": "22186604", "title": "", "text": "can be enforced without resort to the particular terms, express or implied, of the labor contract, the LMRA does not preempt a claim for violation of the law. Miller v. AT & T Network Systems, 850 F.2d 543, 545-46 (9th Cir.1988). Stated otherwise, section 301 of the LMRA does not “grant the parties to a collective-bargaining agreement the ability to contract for what is illegal under state law....” Allis-Chalmers, supra, 471 U.S. at 212, 105 S.Ct. 1904; see also Hayden v. Reickerd, 957 F.2d 1506, 1509 (9th Cir.1992). Consequently, cases distinguish between state laws that require interpretation of a labor contract and those that prohibit parties from including particular terms in such a contract. Miller, supra, 850 F.2d at 547. A provision in a collective bargaining agreement will not trigger preemption when it is only potentially relevant to the resolution of state law claims. See Humble v. Boeing Co., 305 F.3d 1004, 1010 (9th Cir.2002) (“First, we have held that a CBA provision does not trigger preemption when it is only potentially relevant to the state law claims, without any guarantee that interpretation or direct reliance on the CBA terms will occur”); see also Cramer v. Consolidated Freightways, Inc., 255 F.3d 683, 691-92 (9th Cir.2001) (“Moreover, alleging a hypothetical connection between the claim and the terms of the CBA is not enough to preempt the claim: adjudication of the claim must require interpretation of a provision of the CBA. A creative linkage between the subject matter of the claim and the wording of a CBA provision is insufficient; rather, the proffered interpretation argument must reach a reasonable level of credibility.... The argument does not become credible simply because the court may have to consult the CBA to evaluate it; ‘look[ing] to’ the CBA merely to discern that none of its terms is reasonably in dispute does not require preemption”). Thus, state law claims for unpaid wages are not preempted when the court is required simply to apply the terms of a CBA; they are pre-empted only when the court must interpret the provisions of the CBA. Compare Balcorta v. Twentieth" }, { "docid": "5061714", "title": "", "text": "California Labor Code sections 226.7 and 512; California Labor Code sections 201-203; California Labor Code section 226(a), (e), and (g); and California Business and Professions Code sections 17200 et seq. These rights are independent of the CBA. Thus, the Court’s inquiry focuses on whether the claimed rights are “substantially dependent on analysis” of the CBA. “Tracing the line of demarcation between preempted claims and those that survive section 301’s reach—is not a take that always lends itself to analytical precision.” Burnside, 491 F.3d at 1060 (internal quotations and citations omitted). If the Court simply “looks to” the CBA, the state law claims are not preempted; if the Court must “interpret” the CBA, then the claims are preempted. This distinction is “not always clear or amendable to a bright line test.” Cramer, 255 F.3d at 691. Section 7(H)(3) of the applicable CBA undisputably addresses compensation for donning and doffing time. Specifically, according to Section 7(H)(3), the parties to the CBA agree that the CBA “properly compensates employees” for donning and doffing time. Foster Farms argues that resolution of Ms. Avalos’ claims requires a court to interpret this provision to determine what proper compensation means. Ms. Avalos maintains that her state law causes of action for violation of the California Labor Code do not arise from or call into question any CBA terms, compensations rates, or formulae. After considering the parties’ arguments and the applicable legal authority, the magistrate judge found that Foster Farms failed to carry its heavy burden to establish that the resolution of Ms. Avalos’ claims requires interpretation of the CBA. Having considered the magistrate judge’s thoughtful and thorough opinion, this Court is not left with a firm conviction that an error was made. To the contrary, this Court agrees that Foster Farms failed to establish that federal jurisdiction exists to remove this action to this Court. While noting its concerns, the magistrate judge reasonably distinguished Firestone v. Southern Cal. Gas Co., 219 F.3d 1063, 1065 (9th Cir.2000), the legal authority upon which Foster Farms primarily relied. In Firestone, the issue was whether the compensation received by employees under" }, { "docid": "5061716", "title": "", "text": "a complex formula constituted the premium wage rates required by California law. Id. at 1066-67. That issue could not be resolved without interpreting the complex premium pay structure contained in the CBA. Id. Here, the CBA does not contain a complex wage structure that requires analysis to resolve the claims. Instead, the issue presented is more similar to that in Gregory v. SCIE, LLC., 317 F.3d 1050 (9th Cir.2003). In Gregory, the Court found that Section 301 did not preempt similar claims: Even assuming the CBA provides premium wage rates for over-time, the question here is that raised by [Califor nia Labor Code] Section 510: whether when overtime is paid under the DBA it is paid for all overtime hours worked, as required by California law. This is a question of interpretation of state law, not of the DBA, that we leave to the state court. Id. at 1053 (emphasis in original). Similar to the plaintiffs in Gregory, Ms. Avalos claims that she was not paid for all hours worked, all overtime hours worked, and was not given sufficient meal and rest periods, as required by California law. Under these circumstances, the “issue here is not how overtime rates are calculated but whether the result of the calculation complies with California law.” Id. (emphasis in original). Thus, even if the CBA contemplated some sort of “reasonable compensation” for the time spent donning and doffing, Foster Farms “is bound by state law, which gives employees a right to overtime compensation ‘for all overtime hours worked.’ ” Id. at 1054 n. 4. Accordingly, whether Foster Farms properly compensated Ms. Avalos for all hours worked is a question for the state court. The magistrate judge properly concluded that because it was not clear that the CBA must be analyzed to resolve Ms. Avalos’ claims, this action must be remanded to the state court. As set forth above, the removal statute “is strictly construed and federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Duncan, 76 F.3d at 1485. Although Foster Farms’ claim" }, { "docid": "3287166", "title": "", "text": "harassment at work and also outside the workplace. She claimed to have suffered emotional distress, not as a result of her termination, but rather as a result of the harassment from her co-workers. The Sixth Circuit distinguished between conduct based on the CBA and conduct outside the scope of the agreement. “Although state law claims for intentional infliction of emotional distress strictly based upon a defendant’s exercise of CBA rights do not escape the preemptive force of section 301, such claims premised upon abusive behavior above and beyond the routine exercise of CBA rights are not preempted.” Id., 914 F.2d at 802 (internal citations omitted). The court held that the emotional distress claim was not preempted because the allegations arose from abuse endured while the plaintiff was employed, and from conduct which was not authorized or even contemplated by the CBA, rather than from her termination. That the defendants’ action may have been taken in retaliation for Baker’s participation in the prior arbitration does not defeat section 301 preemption. Cases in which intentional infliction of emotional distress claims are found to be preempted imply that the intent with which the alleged tort is performed is not a determinative factor in preemption analysis. See, e.g., Knafel v. Pepsi Cola Bottlers, Inc., 850 F.2d 1155, 1160-1162 (6th Cir.1988) (finding preemption of emotional distress claim without discussing alleged retaliatory motive). Indeed, the fact that Baker alleges retaliatory action as the motivation for his reassignment supports a finding of section 301 preemption. The purpose of preempting claims based on a violation of a labor contract is to secure the development of a uniform body of federal labor policy. This purpose is furthered when state torts alleged to have been committed in retaliation for exercising rights granted under a CBA, such as arbitration, are heard by a federal court applying federal labor law. While such retaliation as Baker alleges is not itself a wrong under state tort law, it may constitute an unfair labor practice actionable under federal labor law. Thus, even the question of the intent behind Baker’s reassignment implicates questions of federal labor" }, { "docid": "8381279", "title": "", "text": "the employees’ claim arises from their corn tract, not from state law, and is preempted under § 301. Alternatively, it contends that even if the state-established right to meal periods does apply to workers covered by collective bargaining agreements, the right is still negotiable and it can be, and has been, waived in the collective bargaining agreement. It also argues that resolution of the waiver issue requires the interpretation of the agreement, including its history and past practice, and that the claim is preempted for this reason as well. 1. The state law right to meal periods applies to employees covered by collective bargaining agreements. We begin with an examination of California statutes, regulations, and case law regarding meal periods in order to determine whether Ivy Hill is correct that workers covered by collective bargaining agreements are not covered by the state law right to meal periods and penalties and that their claim must therefore be based on the collective bargaining agreement. For over half a century, the Industrial Welfare Commission (“IWC”) — the state agency responsible for promulgating regulations that govern wages, hours, and working conditions in California — has guaranteed work-free meal periods to manufacturing workers in California, including those covered by collective bargaining agreements, pursuant to its authority under § 1173 of the Labor Code. See IWC Wage Order 1-2001, Cal.Code Regs. tit. 8 § 11010 (2005); Cal. Mfrs. Ass’n. v. IWC, 109 Cal.App.3d 95, 167 Cal.Rptr. 203, 215 (1980); see also IWC v.Super. Ct. of Kern County, 27 Cal.3d 690, 166 Cal.Rptr. 331, 613 P.2d 579, 601 (1980) (in bank). In 1999, the legislature codified the existing wage order requirements regarding meal periods when it passed the “Eight-Hour-Day Restoration and Workplace Flexibility Act of 1999.” 1999 Cal. Stat., ch. 134 (A.B.60), § 6 (codified at Cal. Lab.Code § 512). The Act included various other provisions, some of which, on their face, are difficult to reconcile. As Ivy Hill points out, the Act contained a provision that appeared to exempt workers covered by collective bargaining agreements who earned over a certain rate of pay from the entire" }, { "docid": "13141655", "title": "", "text": "cause of action for conversion is improper and is dismissed. B. Business and Professions Code Section 17200 Plaintiffs’ sixth claim for relief alleges unfair business practices in violation of California Business and Professions Code section 17200, et seq., also known as the state’s Unfair Competition Law (“UCL”). As with the cause of action for conversion, plaintiffs base this cause of action on the same allegations that support the First through Fourth Causes of Action for violations of the Labor Code. While Wal-Mart initially moved to dismiss the UCL claim in toto, in its reply brief, Wal-Mart, presumably responding to plaintiffs’ citation of on-point authority, Cortez v. Purolator Air Filtration Products Co., 23 Cal.4th 163, 177, 96 Cal.Rptr.2d 518, 999 P.2d 706 (2000) (concluding that orders for payment of wages unlawfully withheld from an employee pursuant to Labor Code § 227.3 are a restitutionary remedy authorized by section 17203), concedes that plaintiffs have properly alleged an “unlawful business practice” based upon the alleged failure to pay accrued vacation pay in violation of Labor Code § 227.3. See Reply at 11 (“The Court should grant Defendant’s motion to dismiss the sixth claim with respect to any alleged “unlawful business practice” other than the alleged violation of section 227.3”) (emphasis in original). For their part, plaintiffs concede that under Tomlinson, supra, 359 F.Supp.2d at 895, claims pursuant to Labor Code §§ 203 and 226 cannot support a § 17200 claim. See Id. at 895 (granting judgment on the pleadings on ground that Labor Code § 203 provides for a penalty, not wages, which cannot be raised through § 17200 claim). Accordingly, as the parties are correctly in agreement as to the scope of plaintiffs UCL claim, Wal-Mart’s motion to dismiss the Sixth Cause of Action is granted with respect to claims based on §§ 203 and 226 and denied with respect to claims under § 227.3. See Cortez, supra, 23 Cal.4th at 177, 96 Cal.Rptr.2d 518, 999 P.2d 706. II. Motion to Strike A. The Class Allegations As the Court has already determined that Wal-Mart’s motion to dismiss the class allegations should be" } ]

[ { "docid": "2094874", "title": "", "text": "BAR’s stock. In the present case, however, Protective did not receive all it had bargained for when it acquired Empire’s assets since it had sought and obtained an agreement that any recovery against Moody would be applied to reduce the policyholder’s moratorium. Far from being an unexpected gain, a recovery against Moody was clearly contemplated by Protective and provided for in its reinsurance agreement with Receiver. Finally, in Bangor Punta there was no lawsuit, and there could have been no lawsuit, until Amoskeag acquired BAR’s stock. By contrast, Empire initiated this action against Moody several years before Protective acquired Empire’s assets. Moody is thus urging us to extinguish a cause of action that both existed and was pursued long before the transfer of Empire’s assets took place. Neither law nor equity permits us to do so. Empire suffered a cognizable injury for which a remedy exists. To hold that the remedy abates because the corporation’s assets were sold would result in inequity that the Court in Bangor Punta sought to avoid, and would make Moody himself the beneficiary of a windfall. See National Union Electric Corporation v. Matsushita Electric Industrial Co., 498 F.Supp. 991, 1003 (E.D.Pa.1980). Receiver is not equitably estopped from bringing this action under the principles enunciated in Bangor Punta. Moody also argues that Receiver is equitably estopped from bringing this action because Moody increased the value of the life interest and pursued the subsequent acquisition program in reliance on the approval issued by Empire’s shareholders and board of directors and the Alabama Department of Insurance. The sole virtue of this contention is audacity. The doctrine of estoppel is for the protection of innocent persons, and only the innocent may invoke it. A party may not invoke an estoppel for the purpose of shielding himself from the results of his own fraud, dereliction of duty, or other inequitable conduct. El Paso National Bank v. Southwest Numismatic Investment Group, Ltd., 548 S.W.2d 942, 949 (Tex.Civ.App.—El Paso 1977, no writ). Moreover, a party invoking estoppel must be ignorant of the facts which the party to be estopped is alleged to" } ]

[ { "docid": "1485614", "title": "", "text": "relied upon in Bangor Punta preclude the new shareholders from maintaining the action and thus also preclude NUE from pursuing it? We approach the problem by considering the applicability of the three conceptual underpinnings of the Home Fire/Bangor Punta doctrine. First, it is clear that the “tainted shares” doctrine is inapposite here since unlike the shareholders in Home Fire, Bangor Punta, and the REA cases, Electrolux did not acquire its holdings from wongdoers or those who acquiesced in wrongdoing. More difficult questions are whether the contemporaneous ownership requirement and/or the “windfall” analysis advanced in Home Fire would preclude such a lawsuit. The contemporaneous ownership requirement is now embodied in Fed.R.Civ.P. 23.-1(1). As a matter of procedure, had Electrolux attempted to institute the present suit as a derivative action complaining of wrongs that occurred prior to its acquisition, it would have been prevented from doing so by Rule 23.1. Indeed, a derivative action properly brought by NUE’s previous shareholders would have abated upon the transfer of the shares. 3B Moore’s Federal Practice ¶ 23.1.17; 7A Wright & Miller, Modern Federal Practice and Procedure § 1826. But, this said, it does not follow that this procedural requirement can be used to pierce the corporate veil when the action is instituted by the corporation, i. e., unless the rule has a substantive equitable basis, it cannot be the ground upon which corporate standing can be denied. It has been suggested by Professor Moore and Professors Wright and Miller in their treatises that Rule 23.1(1) should not be read to bar a direct suit by the corporation itself when none of its present shareholders held stock during the time of the alleged injury and are therefore themselves ineligible to sue derivatively. “Inasmuch as the language of Rule 23.1(1) applies only to derivative actions, extending its application to prevent an action by the corporation is not justified either textually or as a matter of policy underlying the provision.” 7A Wright and Miller, supra § 1828 at 353. This position is adopted in Aeronca, Inc. v. Style-Crafters, Inc., 499 F.2d 1367, 1374 (4th Cir. 1974), where" }, { "docid": "1485655", "title": "", "text": "went into the calculus of the final bid, nor do we believe the appraiser’s finding that the lawsuit had no asset value to be equivalent to a finding that the lawsuit did not play a role in the acquisition, particularly in light of the apparent agreement among the NUE expert, the appraiser, and Chancellor Marvel that its value was reflected in the market price. While this conclusion may be at odds with Mr. Werthen’s perception that the lawsuit had value as an asset for which he was willing to pay some extra if not exactly identifiable amount, it supports NUE’s position here that the litigation figured into the final offer. In sum we find that the doctrines collateral and judicial estoppel are not applicable here and do not bar NUE from maintaining that there exists a genuine issue of material fact that must preclude us from granting summary judgment on this motion, even if Bangor Punta is deemed the controlling legal precedent on these facts. . The litigation is described generally in our opinion addressed to the subject matter jurisdiction motion; that opinion also catalogues the numerous summary judgment motions. See 494 F.Supp. 1161 (E.D.Pa.1980). The present motion is interposed on behalf of the following defendants: Sanyo Electric Co., Ltd., Sanyo Electric Trading Co., Ltd., Sanyo Electric Inc.; Toshiba Corp., Toshiba America, Inc.; Hitachi, Ltd., Hitachi Kaden Hanbai Kabushiki Kaisha, Hitachi Sales Corp. of America; Matsushita Electric Industrial Co., Ltd., Matsushita Electric Corp. of America; Mitsubishi Corp., Mitsubishi International Corp., Sony Corp., Sony Corp. of America; Sharp Corp., and Sharp Electronics Corp. . Together with various members of his family, Mr. Feldmann owned at the time of his death approximately forty-two percent of the outstanding NUE common stock. . Ninety-two percent of NUE’s shares were acquired as a result of the tender offer and the eight percent balance as the result of the merger. In December, 1975, Electrolux contributed all the stock of NUE to another wholly-owned Electrolux subsidiary, Dometic, Inc. The parties have treated Electrolux as the sole owner of the NUE stock, and, at least for purposes of" }, { "docid": "1485594", "title": "", "text": "the executors of his estate decided to sell its interest in NUE, since the estate was obligated to various banks for large sums of money under loans made prior to Mr. Feldmann’s death. One of the companies expressing interest in NUE was a large Swedish manufacturer of vacuum cleaners, Aktiebolaget Electrolux (Electrolux). In July, 1974, Electrolux made a cash tender offer for one hundred percent of the outstanding shares of NUE at $28 per share. Through acceptance of the tender offer and a subsequent Delaware “freeze-out merger” effected at the same $28 per share figure, Electrolux became, on August 1, 1975, the owner of all the outstanding stock of NUE, and the sole ultimate beneficiary of any recovery in this action. Based upon the extensive pretrial discovery record addressed to this issue, defendants submit that the $28 per share price paid by Electrolux represented the fair value of the assets and potential sales and earning power of NUE and that in negotiating to acquire NUE, Electrolux was motivated solely by a desire to enter the American vacuum cleaner market. While conceding that Electrolux was well aware that NUE owned, as a chose in action, this major lawsuit, defendants maintain that NUE placed no dollar value on the lawsuit, and that in fact nothing “extra” was paid for it. Under these circumstances defendants contend that, viewed in the light of a pierced corporate veil, any recovery by NUE in this action would amount to a pure “windfall” to Electrolux. Consequently, they argue, under the equitable doctrine announced by the United States Supreme Court in Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co., 417 U.S. 703, 94 S.Ct. 2578, 41 L.Ed.2d 418 (1974) (Bangor Punta), described in detail infra, summary judgment should be entered dismissing the complaint of NUE because Electrolux has sustained no harm by virtue of defendants’ conduct and hence NUE, as its wholly owned subsidiary, lacks standing to sue. In defendants’ view; [t]he essence of the Bangor Punta decision is the recognition by the Court that it is inequitable for a corporation to recover damages in circumstances" }, { "docid": "1485595", "title": "", "text": "American vacuum cleaner market. While conceding that Electrolux was well aware that NUE owned, as a chose in action, this major lawsuit, defendants maintain that NUE placed no dollar value on the lawsuit, and that in fact nothing “extra” was paid for it. Under these circumstances defendants contend that, viewed in the light of a pierced corporate veil, any recovery by NUE in this action would amount to a pure “windfall” to Electrolux. Consequently, they argue, under the equitable doctrine announced by the United States Supreme Court in Bangor Punta Operations, Inc. v. Bangor & Aroostook R. Co., 417 U.S. 703, 94 S.Ct. 2578, 41 L.Ed.2d 418 (1974) (Bangor Punta), described in detail infra, summary judgment should be entered dismissing the complaint of NUE because Electrolux has sustained no harm by virtue of defendants’ conduct and hence NUE, as its wholly owned subsidiary, lacks standing to sue. In defendants’ view; [t]he essence of the Bangor Punta decision is the recognition by the Court that it is inequitable for a corporation to recover damages in circumstances (1) where the present shareholder had no interest in the corporation at the time of the alleged wrongs, (2) where the present shareholder has not been injured by any of the wrongs done to the corporation and (3) where the present shareholder has not paid anything of value for the right to seek redress for the past wrongs done to others. Brief of Certain Defendants at 3 — 4. In Bangor Punta terms, since Electrolux is the sole owner of NUE shares, it is the real party in interest in the NUE action and would be the exclusive beneficiary of any damages NUE might recover. Since Electrolux “got what it paid for” in acquiring NUE, paid nothing as such to acquire the lawsuit, and has itself suffered no injury, defendants contend that recovery by NUE would unjustly enrich Electrolux in violation of the principles of equity relied upon in Bangor Punta. Thus we refer to the matter before us as the “Bangor Punta” motion. Plaintiffs, on the other hand, conceive of Bangor Punta as a" }, { "docid": "1485631", "title": "", "text": "Court repealing or retrenching from those principles even to a modest degree without announcing that it was doing so, and there was no such announcement accompanying Bangor Punta. The continued vitality of the deterrence principle, see, e. g., Illinois Brick Co. v. Illinois, 431 U.S. 720, 745, reh. denied 434 U.S. 881, 98 S.Ct. 243, 54 L.Ed.2d 164 (1977), militates against defendants’ position. In our view in the absence of such facts as characterized Bangor Punta, which would render recovery inequitable, the deterrent policies of the antitrust laws must be deemed operative in order to encourage private litigants to enforce those laws. Under the circumstances of this case those deterrent policies form a far more powerful and overriding public policy than amorphous notions of windfall. Thus, respect for the corporate entity rather than disregard of it is the appropriate course. C. Conclusion We have analyzed the facts of the present case in terms of the three conceptual underpinnings of the Home Fire/Bangor Punta doctrine-tainted shares, contemporaneous ownership, and unjust enrichment- and have found that none will support application of Bangor Punta to this case. In terms of what is here the dominant question, that of unjust enrichment, while it may be true that Electrolux paid a price that reflected the fair market value of NUE following its antitrust injury and one that did not include “extra” or severable consideration for the lawsuit, we do not believe that any recovery by NUE and thus derivatively by Electrolux would amount to a “windfall” of the sort envisioned in Bangor Punta. Bangor Punta is totally inapposite on its facts and is a narrow case primarily applicable in situations where a new shareholder, proceeding in the corporate name, seeks to recover from its vendor for wrongs committed prior to the sale and reflected in the purchase price, and perhaps applicable where the new shareholder is found to have engaged in speculation in other kinds of corporate causes of action. See n. 13, supra. We do not believe, however, that Bangor Punta can be read to extend to a case where the shares of a" }, { "docid": "1485628", "title": "", "text": "of the corporate entity, it is clear that the parties contemplated that the lawsuit would accompany the corporation when it changed hands, i. e., that the corporation would continue to pursue its corporate cause of action. To repeat, under these circumstances, we see no equitable considerations in the nature of an overriding public policy that would cause us to ignore the corporate entity- This construction is consistent with conventional notions of the law of corporations. In the ordinary course, when a buyer acquires the stock of a corporation, he does not think of his identity as shareholder as indistinct from the corporate identity or of the corporate assets as having become his own-he does not think in terms of a pierced corporate veil. Rather, the buyer assumes that the interest he acquires is an interest in a corporation with its own property and assets. He also assumes that the assets of the corporation will be unaffected by the transfer of shares, i. e., that the fact of his acquisition will have no ramifications on the corporate entity and that the corporation’s real property and its choses in action, including its lawsuits, will remain with the corporation. Defendants concede that so long as Electrolux paid any consideration whatsoever for this lawsuit, NUE is entitled to pursue it. Their accompanying argument that NUE Should be permitted to recover no more than the amount of any consideration Electrolux paid for the lawsuit is in such irreconcilable conflict with the principle that the law will not question the adequacy of consideration that it undermines the credibility of their position. In the absence of the kind of overriding equitable principles that were present in Home Fire, Bangor Punta, or the REA litigation, using the veil-piercing device as a means to bar a newly acquired corporation from pursuing a preexisting lawsuit or to minimize its possible recovery would turn the law on its head. The foregoing considerations are more than sufficient to support our conclusion that Bangor Punta announces a narrow doctrine that is inapplicable at bar. We find further support for that conclusion, however, in" }, { "docid": "1485656", "title": "", "text": "to the subject matter jurisdiction motion; that opinion also catalogues the numerous summary judgment motions. See 494 F.Supp. 1161 (E.D.Pa.1980). The present motion is interposed on behalf of the following defendants: Sanyo Electric Co., Ltd., Sanyo Electric Trading Co., Ltd., Sanyo Electric Inc.; Toshiba Corp., Toshiba America, Inc.; Hitachi, Ltd., Hitachi Kaden Hanbai Kabushiki Kaisha, Hitachi Sales Corp. of America; Matsushita Electric Industrial Co., Ltd., Matsushita Electric Corp. of America; Mitsubishi Corp., Mitsubishi International Corp., Sony Corp., Sony Corp. of America; Sharp Corp., and Sharp Electronics Corp. . Together with various members of his family, Mr. Feldmann owned at the time of his death approximately forty-two percent of the outstanding NUE common stock. . Ninety-two percent of NUE’s shares were acquired as a result of the tender offer and the eight percent balance as the result of the merger. In December, 1975, Electrolux contributed all the stock of NUE to another wholly-owned Electrolux subsidiary, Dometic, Inc. The parties have treated Electrolux as the sole owner of the NUE stock, and, at least for purposes of the conclusions herein, we do not regard the transfer of shares to Dometic as relevant. . For purposes of this motion only, the conduct complained of is admitted, and we treat NUE’s allegations of antitrust violations as true throughout this opinion. . NUE sought successfully to uphold the appraiser’s conclusion that the $28 per share paid the stockholders in the freeze-out merger was fair. . Dean Pound’s discussion also presumes that the cause of action was not in the contemplation of the parties at the time the shares were transferred. Id. at 1030. This assumption, while a valid one in both Home Fire and Bangor Punta, is simply not applicable here. See discussion infra at 1004-1005. . It should be noted, however, that at least part of the impetus for the holding in Home Fire was that the present shareholders acquired a large portion (but not all) of their stock by virtue of the very acts of mismanagement they sought to attack, i. e., their vendor had wrongfully used funds of the company to buy" }, { "docid": "1485613", "title": "", "text": "filed in 1970, it was not properly maintainable by NUE itself, for the cause of action was a corporate cause of action; the injuries said to have occurred at the hands of the defendants were injuries to the business and property of NUE, and NUE was the statutorily designated plaintiff. Presumably, had NUE failed or refused upon proper demand to bring the action, one or more of its shareholders could have instituted a derivative suit complaining of the injury suffered by the corporation because of defendants’ anticompetitive acts. Since the lawsuit was never styled as a derivative action, however, we must ascertain whether the transfer of shares to a new owner brings into play the equitable difficulties identified in Bangor Punta and thus extinguishes what was a properly framed and instituted lawsuit. It is useful for purposes of analysis to assume for the moment that the present action was instituted by NUE following rather than prior to the tender offer by which Electrolux came to control the corporation. Under these circumstances, would the equitable principles relied upon in Bangor Punta preclude the new shareholders from maintaining the action and thus also preclude NUE from pursuing it? We approach the problem by considering the applicability of the three conceptual underpinnings of the Home Fire/Bangor Punta doctrine. First, it is clear that the “tainted shares” doctrine is inapposite here since unlike the shareholders in Home Fire, Bangor Punta, and the REA cases, Electrolux did not acquire its holdings from wongdoers or those who acquiesced in wrongdoing. More difficult questions are whether the contemporaneous ownership requirement and/or the “windfall” analysis advanced in Home Fire would preclude such a lawsuit. The contemporaneous ownership requirement is now embodied in Fed.R.Civ.P. 23.-1(1). As a matter of procedure, had Electrolux attempted to institute the present suit as a derivative action complaining of wrongs that occurred prior to its acquisition, it would have been prevented from doing so by Rule 23.1. Indeed, a derivative action properly brought by NUE’s previous shareholders would have abated upon the transfer of the shares. 3B Moore’s Federal Practice ¶ 23.1.17; 7A Wright" }, { "docid": "2094872", "title": "", "text": "any recovery against Moody would inure to the benefit of those policyholders by reducing the moratorium amount established under the treaty. Moody contends that Protective is the real plaintiff in interest under these facts, and that any recovery against Moody would unjustly enrich Protective in violation of the equitable principles enunciated in Bangor Punta Operations, Inc. v. Bangor & Aroostook Railroad, 417 U.S. 703, 94 S.Ct. 2578, 41 L.Ed.2d 418 (1974). In Bangor Punta the Amoskeag Company (“Amoske-ag”) purchased virtually all the stock of the Bangor & Aroostook Railroad (“BAR”). BAR subsequently sued its former owner for corporate waste and mismanagement. The Supreme Court held that equity precluded BAR from maintaining the action, reasoning that although the suit was purportedly brought on BAR’s behalf, the real party in interest and the principal beneficiary of any recovery was Amoskeag. Since the depressed price Amoskeag had paid for BAR’s stock already reflected the effects of the earlier mismanagement, any recovery would constitute a “windfall” for Amoskeag. Bangor Punta is distinguishable from the present case in several respects. First, Protective in this case, unlike Amoskeag in Bangor Punta, cannot fairly be considered the principal beneficiary of any recovery against the injured corporation’s former owner. Although Protective might benefit derivatively from such recovery, the principal beneficiaries under the express terms of the reinsurance agreement are the policyholders of Empire. These policyholders are Empire’s creditors, and have suffered direct injury as a result of Moody’s improprieties. By contrast, the Supreme Court in Bangor Punta stressed that Amoskeag was not suing on behalf of the injured corporation’s creditors, 417 U.S. at 718 n. 15, 94 S.Ct. at 2587 n. 15, and had not itself suffered any injury, 417 U.S. at 711-12, 94' S.Ct. at 2583-84. Second, even if Protective were the principal beneficiary of any recovery in this ease, it still could not fairly be considered the beneficiary of a “windfall.” The Supreme Court’s finding in Bangor Punta that any recovery against BAR’s former owner would constitute a windfall for Amoskeag turned on the fact that Amoskeag received all .it had bargained for- when it acquired" }, { "docid": "1485635", "title": "", "text": "of Material Fact That Would Prevent the Grant of Summary Judgment A. The Contentions of the Parties As noted previously, defendants concede that if Electrolux paid value for this lawsuit, NUE is entitled to maintain it (although they contend that any recovery that would be had under such circumstances would have to be limited to the amount of consideration paid in order to prevent a Bangor Punta “windfall”). They maintain, however, that the record shows conclusively that in fact no consideration was paid to the former NUE shareholders for the suit and further that the findings of the appraiser in the Delaware Chancery Court proceedings, which were approved by Chancellor Marvel on April 17, 1980, and which included the finding that “the $28 price paid for the minority interest did not reflect any value in the Japanese lawsuit,” Final Report of the Appraiser at 13, collaterally estop NUE from contending that extra value was paid for the litigation. They buttress this argument by contending that the position advanced by NUE during the Delaware proceedings and its failure to take exception to the appraiser’s findings “judicially” estop it from now being heard to contend that the value of the lawsuit was reflected in the purchase price. For its part plaintiff submits that Electrolux did pay consideration for the lawsuit (though it does not identify with precision how much consideration) and further states that the finding of the appraiser that this lawsuit had no asset value was based on a failure of proof on the part of the plaintiff-shareholders. It is asserted that this lapse on the part of the Delaware plaintiffs should not be used to collaterally estop NUE from maintaining that value was paid. Pointing to the deposition testimony and affidavit of Hans Werthen, Executive Chairman of Electrolux, who was primarily responsible for the acquisition, plaintiff posits that the relevant foci for purposes of this motion is what Werthen believed his $28.00 offer included and his calculations of how that figure was arrived at, rather than the Delaware Chancery Court finding, which considered only whether plaintiffs there received fair value" }, { "docid": "1485664", "title": "", "text": "holding is once again the tainted shares/self inflicted injury analysis we have seen in the REA cases and in Bangor Punta itself, and the incidental presence of a party acting in concert makes no difference in the result. The focus is on the nature of the plaintiff, who has acquired his shares from the wrongdoer at a fair price. . Of course, Electrolux has incurred obligations here too, since its wholly owned subsidiary, NUE, continues to finance the lawsuit. . Prior to the adoption of the Federal Rules of Civil Procedure, which abolished the procedural distinctions between law and equity (Rule 2), a suit for treble damages, which was deemed an action at law, could not have been brought by a shareholder, since a derivative suit is an equitable device. . The question whether the contemporaneous ownership requirement is one of procedure or of substantive law has generally arisen in the context of diversity cases. If the rule is one of procedure only, then it would bar a diversity action where the plaintiff did not own shares at the time of the alleged injury. If, however, the rule has a substantive basis, then under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), it could not validly be applied to defeat an action where the forum state does not require contemporaneous ownership. In the context of the present case, it would appear that if the rule is merely one of procedure, it does not rise to the level of an equitable principle that would support disregard of the corporate veil, even though it would bar suit by the shareholders. . To the extent that the contemporaneous shareholder rule is aimed at preventing a broader kind of speculation in litigation than the strike suit, it might legitimately be used to pierce the corporate veil where a stranger to a corporation, aware of intracorporate mismanagement or fraud, wholly acquires the distressed company in the hope of extracting damages from the wrongdoers, be they the former owners (as in Bangor Punta) or directors and officers or others" }, { "docid": "1485663", "title": "", "text": "accountants would be of the sort held impermissible in Bangor Punta. Since the subrogee has no greater rights than the subrogor, American States had no standing to maintain the action. The court of appeals affirmed. It rejected American States’ contention that Bangor Punta did not apply because it was seeking recovery from a third party who was neither guilty of wrongdoing nor acquiesced in it. The court determined that Bangor Punta need not be confined to actions against former owners but rather that its equitable considerations come into play if (1) plaintiff is a shareholder who acquired its shares from a wrongdoer and (2) the claim for relief seeks damages for those same acts of mismanagement. “It is the combination of these two factors that ‘would permit [the new shareholder] to reap a profit for wrongs done to others.’ Viewed from this perspective, then, it is clearly a matter of no consequence that the appellant is seeking to recover such a ‘windfall’ from the accountants. ...” 594 F.2d at 635. Thus, the thrust of the holding is once again the tainted shares/self inflicted injury analysis we have seen in the REA cases and in Bangor Punta itself, and the incidental presence of a party acting in concert makes no difference in the result. The focus is on the nature of the plaintiff, who has acquired his shares from the wrongdoer at a fair price. . Of course, Electrolux has incurred obligations here too, since its wholly owned subsidiary, NUE, continues to finance the lawsuit. . Prior to the adoption of the Federal Rules of Civil Procedure, which abolished the procedural distinctions between law and equity (Rule 2), a suit for treble damages, which was deemed an action at law, could not have been brought by a shareholder, since a derivative suit is an equitable device. . The question whether the contemporaneous ownership requirement is one of procedure or of substantive law has generally arisen in the context of diversity cases. If the rule is one of procedure only, then it would bar a diversity action where the plaintiff did not" }, { "docid": "1485599", "title": "", "text": "certain appraisal proceedings in Delaware Chancery Court that have occurred in the wake of the freeze-out merger, as well as a lawsuit filed in the United States District Court for the Western District of Texas by disgruntled former NUE shareholders who object to the price per share paid in the merger. In particular, defendants point to certain findings of the court-appointed appraiser in the Delaware proceeding and NUE’s endorsement of those findings, especially the appraiser’s conclusion that the lawsuit had no asset value. According to defendants, these facets of the Delaware proceeding not only make clear that no consideration was paid for the lawsuit, but also call into play the doctrines of collateral estoppel and judicial estoppel, barring NUE from contending that consideration was paid. For reasons that will also appear, we find it plain that there is a genuine issue of material fact as to Electrolux’s payment of consideration to acquire the lawsuit, and that the estoppel arguments do not change that result. II. Bangor Punta A. Bangor Punta Explained-Its Facts and Its Reasoning In 1964, the Bangor Punta Corporation purchased, through its subsidiary, Bangor Punta Operations, 98.3% of the stock of plaintiff Bangor & Aroostook Railroad (BAR). In 1969, Bangor Punta sold all of its stock to Amoskeag Company, which later obtained additional shares so that it ultimately held in excess of 99% of the BAR stock. In 1971, BAR filed suit against Bangor Punta alleging violations of § 10 of the Clayton Act, 15 U.S.C. § 20, various sections of the federal securities laws, and Maine statutory and common law, and seeking seven million dollars in damages for mismanagement, misappropriation, and waste of BAR’s assets during the period Bangor Punta controlled BAR. The district court (Gignoux, J.) granted summary judgment for the defendants and dismissed the complaint, Bangor & Aroostook Railroad Co. v. Bangor Punta Operations, Inc., 353 F.Supp. 724 (D.Me.1972), reasoning that, although the suit purported to be a primary action brought in the name of the corporation, the real party in interest in the suit, and the actual beneficiary of any recovery, was Amoskeag, which" }, { "docid": "1485622", "title": "", "text": "enrichment, Justice Powell observed: The equitable principles of Home Fire preclude Amoskeag from reaping a windfall by enhancing the value of its bargain to the extent of the entire purchase price plus an additional $2,000,000. Amoskeag would in effect have acquired a railroad worth $12,000,000 for only $5,000,000. Neither the federal antitrust or securities laws nor the applicable state laws contemplate recovery in these circumstances. Id. at 716, 94 S.Ct. at 2585-86 (emphasis added). Thus, the windfall in the Court’s own terms arises when Amoskeag enhances the value of its bargain, i. e., when it recovers back from the defendant the consideration that it admits fairly reflected the value of the shares. To this extent we think the holding of the Court is dependent on the identity of the defendant, not so much because it will have to pay twice (although that would be the practical effect of a ruling in plaintiff’s favor) but because permitting plaintiff in effect to attack its bargain and recover back its consideration while keeping the benefits of that bargain is the sort of conduct that shocks the conscience of the court and requires disregard of the corporate fiction to prevent. It is indeed the weakness of plaintiff’s position that informs the court’s holding-the inequity of permitting it to acquire “something for nothing.” Here, in contrast, while recovery by NUE would derivatively benefit Electrolux as sole shareholder, the recovery would not literally or figuratively be recovery of the consideration paid by Electrolux for the corporate shares, but rather would be in the form of damages for antitrust violations committed by third parties. We do not believe the increased value of Electrolux’s holding falls within the “circumstances” abhorred by the Court in Bangor Punta, or that it would constitute a “windfall” in the pejorative sense that the Court employs the term, or that enrichment under these facts would be unjust. Here, Electrolux does not seek to attack its bargain, nor does it use the corporate form “to defeat some overriding public policy.” We think it important in this regard that in Bangor Punta (and in Home" }, { "docid": "1485597", "title": "", "text": "doctrine limited to cases in which a plaintiff seeks to recover damages from the prior owners of corporate stock (from whom the plaintiff acquired the stock) for wrongs in the nature of mismanagement or waste of corporate assets perpetrated upon the acquired corporation prior to acquisition. In such a circumstance the prior owners, as sole owners of the harmed corporation, have, in effect, committed harm upon themselves, and, since the acquiring company, in the absence of fraud in the sale, “got what it paid for” (paying a value for the stock of the distressed corporation that reflected the mismanagement) to permit it to recover damages from the former owner would constitute a recoupment of the purchase price. Accordingly, plaintiffs submit that the Bangor Punta doctrine is inapplicable where, as here, the defendants are not former owners but strangers to the subject corporation. Because the facts of Bangor Punta are very different from those before us, plaintiffs distinguish Bangor Punta and urge us not to apply it or its principles to this case. Obviously we must commence the substantive portion of this opinion with an exegesis of Bangor Punta so as to determine its scope and its applicability at bar. The latter inquiry will turn not just on the language of Bangor Punta, but also upon more general principles of the law of equity and of property as well as antitrust law policy considerations. For reasons that will in due course appear, we find that Bangor Punta may not be read expansively and that it should not be applied here. While that conclusion would be enough to dispose of the motion, we prefer, in view of the nature and magnitude of this case, and our proximity to trial, to leave no aspect of the motion undecided. We shall therefore reach the second aspect of- this motion: assuming arguendo that Bangor Punta does apply to the case, is there a genuine issue of material fact as to whether the present lawsuit was a factor in the Electrolux acquisition (or whether Electrolux paid any consideration for the lawsuit). This inquiry in turn implicates" }, { "docid": "1485596", "title": "", "text": "(1) where the present shareholder had no interest in the corporation at the time of the alleged wrongs, (2) where the present shareholder has not been injured by any of the wrongs done to the corporation and (3) where the present shareholder has not paid anything of value for the right to seek redress for the past wrongs done to others. Brief of Certain Defendants at 3 — 4. In Bangor Punta terms, since Electrolux is the sole owner of NUE shares, it is the real party in interest in the NUE action and would be the exclusive beneficiary of any damages NUE might recover. Since Electrolux “got what it paid for” in acquiring NUE, paid nothing as such to acquire the lawsuit, and has itself suffered no injury, defendants contend that recovery by NUE would unjustly enrich Electrolux in violation of the principles of equity relied upon in Bangor Punta. Thus we refer to the matter before us as the “Bangor Punta” motion. Plaintiffs, on the other hand, conceive of Bangor Punta as a doctrine limited to cases in which a plaintiff seeks to recover damages from the prior owners of corporate stock (from whom the plaintiff acquired the stock) for wrongs in the nature of mismanagement or waste of corporate assets perpetrated upon the acquired corporation prior to acquisition. In such a circumstance the prior owners, as sole owners of the harmed corporation, have, in effect, committed harm upon themselves, and, since the acquiring company, in the absence of fraud in the sale, “got what it paid for” (paying a value for the stock of the distressed corporation that reflected the mismanagement) to permit it to recover damages from the former owner would constitute a recoupment of the purchase price. Accordingly, plaintiffs submit that the Bangor Punta doctrine is inapplicable where, as here, the defendants are not former owners but strangers to the subject corporation. Because the facts of Bangor Punta are very different from those before us, plaintiffs distinguish Bangor Punta and urge us not to apply it or its principles to this case. Obviously we must" }, { "docid": "1485629", "title": "", "text": "corporate entity and that the corporation’s real property and its choses in action, including its lawsuits, will remain with the corporation. Defendants concede that so long as Electrolux paid any consideration whatsoever for this lawsuit, NUE is entitled to pursue it. Their accompanying argument that NUE Should be permitted to recover no more than the amount of any consideration Electrolux paid for the lawsuit is in such irreconcilable conflict with the principle that the law will not question the adequacy of consideration that it undermines the credibility of their position. In the absence of the kind of overriding equitable principles that were present in Home Fire, Bangor Punta, or the REA litigation, using the veil-piercing device as a means to bar a newly acquired corporation from pursuing a preexisting lawsuit or to minimize its possible recovery would turn the law on its head. The foregoing considerations are more than sufficient to support our conclusion that Bangor Punta announces a narrow doctrine that is inapplicable at bar. We find further support for that conclusion, however, in the Bangor Punta court’s rather matter of fact rejection of the position of the four dissenting justices (and of the court of appeals) that Amoskeag should be deemed to have standing so as to further the deterrent purposes of the antitrust laws, for we doubt that the Court would so directly have rejected the deterrence argument had it deemed its holding to be of sweeping import or to extend beyond the factual pattern of the ease. We say this because of a ninety year history of Supreme Court adherence to antitrust principles “aimed at preserving free and unfettered competition as the rule of trade,” Northern Pacific Railway Co. v. United States, 356 U.S. 1, 4, 78 S.Ct. 514, 517, 2 L.Ed.2d 545 (1958), the enforcement of which depends heavily on the private treble damage action as “an ever-present threat to deter anyone contemplating business behavior in violation of the antitrust laws.” Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 892 (1968). We cannot conceive of the Supreme" }, { "docid": "1485634", "title": "", "text": "plaintiff willing to file a complaint,” 417 U.S. at 717, '94 S.Ct. at 2586, but rather that it merely states the proposition that where an action is properly brought by a corporation, a change in that corporation’s ownership will not in and of itself suffice to cause the action to abate. Although we are confident that the Supreme Court announced no broad rule of law in Bangor Punta that would prohibit NUE from continuing to pursue this lawsuit, in view of the magnitude of the case and the legal resources brought to bear in each of the many motions that has been filed, we think it is important to dispose of all the issues implicated here. We therefore consider in the section of this opinion that follows whether, assuming that Bangor Punta does apply in these circumstances, there is nevertheless a genuine issue of material fact as to whether Electrolux paid value for the lawsuit, which would render a grant summary judgment inappropriate. III. Assuming Arguendo the Applicability of Bangor Punta, Are There Genuine Issues of Material Fact That Would Prevent the Grant of Summary Judgment A. The Contentions of the Parties As noted previously, defendants concede that if Electrolux paid value for this lawsuit, NUE is entitled to maintain it (although they contend that any recovery that would be had under such circumstances would have to be limited to the amount of consideration paid in order to prevent a Bangor Punta “windfall”). They maintain, however, that the record shows conclusively that in fact no consideration was paid to the former NUE shareholders for the suit and further that the findings of the appraiser in the Delaware Chancery Court proceedings, which were approved by Chancellor Marvel on April 17, 1980, and which included the finding that “the $28 price paid for the minority interest did not reflect any value in the Japanese lawsuit,” Final Report of the Appraiser at 13, collaterally estop NUE from contending that extra value was paid for the litigation. They buttress this argument by contending that the position advanced by NUE during the Delaware proceedings and" }, { "docid": "1485632", "title": "", "text": "will support application of Bangor Punta to this case. In terms of what is here the dominant question, that of unjust enrichment, while it may be true that Electrolux paid a price that reflected the fair market value of NUE following its antitrust injury and one that did not include “extra” or severable consideration for the lawsuit, we do not believe that any recovery by NUE and thus derivatively by Electrolux would amount to a “windfall” of the sort envisioned in Bangor Punta. Bangor Punta is totally inapposite on its facts and is a narrow case primarily applicable in situations where a new shareholder, proceeding in the corporate name, seeks to recover from its vendor for wrongs committed prior to the sale and reflected in the purchase price, and perhaps applicable where the new shareholder is found to have engaged in speculation in other kinds of corporate causes of action. See n. 13, supra. We do not believe, however, that Bangor Punta can be read to extend to a case where the shares of a corporation that has been actively pursuing a lawsuit are wholly acquired by new owners. While Bangor Punta will not permit a lawsuit to be created solely by virtue of a transfer of shares, it does not require a properly instituted action to abate upon such a sale. Bangor Punta holds that the court must ignore the corporate fiction when the equities of the case so require. For the reasons we have described, we find that the equities here do not justify such action. To the contrary, they weigh in favor of plaintiff corporation, which has alleged that it suffered an injury for which the antitrust laws provide a remedy. To read Bangor Punta so broadly as to extinguish that remedy and thus insulate the wrongdoers would be both to disregard the deterrent purposes of the antitrust laws and to turn on their head equitable rules, which are by nature flexible and designed to be applied only to prevent an injustice the law would otherwise permit. We do not believe our holding confers standing on “any" }, { "docid": "2094871", "title": "", "text": "based upon an appraisal by an accounting or actuarial firm. R. Frank Ussery, Alabama’s Superintendent of Insurance from December 1968 to January 1971, testified that he, too, believed the increased valuation was based on assumptions provided by an accounting or actuarial firm. The jury could reasonably have found that the reliance of these persons on Moody’s representations was justified, and that their diligence was sufficient to toll the statute of limitations. 3. Equitable Estoppel In April 1975, three years after the present action against Moody was initiated, Receiver entered into an agreement to effectuate a bulk reinsurance treaty with Protective' Life Insurance Company of America (“Protective”). Under this treaty Protective acquired virtually all of Empire’s assets and liabilities. Receiver retained Empire’s rights of action against Moody, but agreed to pass along to Protective any recovery obtained from Moody. Since Empire’s liabilities exceeded its assets, Protective stipulated that it would reinsure only those Empire policyholders who accepted a ten-year moratorium on the right to receive the cash values of their policies. Protective and Receiver agreed that any recovery against Moody would inure to the benefit of those policyholders by reducing the moratorium amount established under the treaty. Moody contends that Protective is the real plaintiff in interest under these facts, and that any recovery against Moody would unjustly enrich Protective in violation of the equitable principles enunciated in Bangor Punta Operations, Inc. v. Bangor & Aroostook Railroad, 417 U.S. 703, 94 S.Ct. 2578, 41 L.Ed.2d 418 (1974). In Bangor Punta the Amoskeag Company (“Amoske-ag”) purchased virtually all the stock of the Bangor & Aroostook Railroad (“BAR”). BAR subsequently sued its former owner for corporate waste and mismanagement. The Supreme Court held that equity precluded BAR from maintaining the action, reasoning that although the suit was purportedly brought on BAR’s behalf, the real party in interest and the principal beneficiary of any recovery was Amoskeag. Since the depressed price Amoskeag had paid for BAR’s stock already reflected the effects of the earlier mismanagement, any recovery would constitute a “windfall” for Amoskeag. Bangor Punta is distinguishable from the present case in several respects." } ]

[ { "docid": "14812513", "title": "", "text": "have been injured by purchasing the defective homes. Thus, the plaintiffs’ claims fall squarely within the misrepresentation exception. Our review of other cases supports the finding that the plaintiffs’ claims fall within the misrepresentation exception. In Baroni v. United States, 662 F.2d 287 (5th Cir.1981), cert. denied, 460 U.S. 1036, 103 S.Ct. 1426, 75 L.Ed.2d 787 (1983), purchasers of federally insured housing brought suit after a flood level location fixed by the FHA proved to be incorrect. This miscalculation made by the FHA employees was communicated to the developer who filled the lots to an elevation above the predicted flood line, as required by FHA. The plaintiffs in Baroni argued that a general tort was committed when the agency miscalculated the flood level, and like the plaintiffs in the case before us, they contended that a duty was imposed under state law once the agency undertook to establish the flood level. The Fifth Circuit rejected this argument: “Assuming that the government’s undertaking created a duty under state law to determine the flood level non-negligently, the damages complained of by the plaintiffs still result solely from the fact that the government communicated its miscalculation to the developer who relied on it, and that reliance eventually caused the plaintiffs’ damage. As noted above, the plaintiffs are prevented from recovering for these damages under a theory of misrepresentation either because of the misrepresentation exception to the Federal Tort Claims Act in § 2680(h) or because of the fact that a party who has been damaged by, but who has not relied directly on the misrepresentation, does not have a cause of action for misrepresentation. To find that the plaintiffs would be barred from recovering their damages under a direct theory of misrepresentation but to allow them to recover under a theory of ‘general tort’ liability for damages that would stem from an indirect reliance on the same acts by the government would undermine the misrepresentation exception to the Federal Tort Claims Act.” Baroni, 662 F.2d at 289 (emphasis added). Also instructive is Preston v. United States, 596 F.2d 232 (7th Cir.1979). In Preston" } ]

[ { "docid": "2168079", "title": "", "text": "of the FTCA. Section 2674 of Title 28 to the United States Code provides in pertinent part: The United States shall be liable, respective the provisions of this Title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances * * *. This abrogation of the doctrine of sovereign immunity, however, is narrowed by the exceptions set forth at Section 2680. Subsection (h) of that section allows an exception to application of the FTCA for “[a]ny claim arising out of * * * misrepresentation.” The United States Supreme Court has twice addressed the scope of the misrepresentation exception to the FTCA. In Neus-tadt, supra, a purchaser of a home relied on a statement reporting the results of a negligently inaccurate inspection and appraisal of the property made by the Federal Housing Administration for mortgage insurance purposes. Upon occupying the home, the purchaser discovered serious structural defects, not disclosed in the FHA statement, which rendered the house’s fair market value substantially lower than the FHA appraised value. The Supreme Court determined that the purchaser’s cause of action was one for negligent misrepresentation and the Section 2680(h) exception barred the claim. In Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), the Court addressed an action brought by a home purchaser who obtained a loan from the FmHA for the construction of a prefabricated house. After obtaining the loan, the purchaser contracted with a builder to construct the house. The contract required the work to conform to plans approved by FmHA and granted FmHA the right to inspect and test all materials and workmanship and reject any that were defective. Once the house was completed, an FmHA official inspected the home and reported that the building met the plans and specifications. Upon taking possession of the house, the purchaser found a number of defects. The Supreme Court held that the buyer’s claim under the FTCA was not solely for negligent misrepresentation, but also for the agency’s breach of the duty to use care to insure that the builder" }, { "docid": "13302885", "title": "", "text": "in and of itself, cannot cause injury. Harm can occur (and, thus, liability can attach) only if the inspection leads either to the communication of inaccurate information or to a failure to communicate precautionary information. See Farmers State Sav. Bank v. FmHA 891 F.2d 200, 202 (8th Cir.1989) (holding that injuries to FTCA plaintiffs who allege faulty inspection or assessment are “caused by rebanee on the representations of government officials and not by reliance on an undertaking that those officials performed negligently”); see also Comm’l Union Ins. Co. v. United States, 928 F.2d 176, 179 (5th Cir.1991) (holding that the misrepresentation exception covers instances in which “the chain of causation from the alleged negligence to the alleged injury depends upon the transmission of misinformation by a government agent”). This takes us full circle — and brings the negligent inspection claims within the purview of the misrepresentation exception. See, e.g., Schneider v. United States, 936 F.2d 956, 961-62 (7th Cir.1991) (holding that the misrepresentation exception precludes a suit seeking recovery for damages from a federal agency’s approval of defective building materials); Baroni v. United States, 662 F.2d 287, 289 (5th Cir.1981) (per curiam) (holding to like effect in connection with the FHA’s underestimation of the predicted flood fine for a housing development); cf. Preston v. United States, 596 F.2d 232, 238 (7th Cir.1979) (holding that an FTCA claim alleging negbgent auditing “amounts to an abegation of misrepresentation by implication”). We turn now to the second category of claims: those related to the government’s role in supervising the construction of the plaintiffs’ homes. Invoking the Supreme Court’s decision in Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), the plaintiffs argue that the misrepresentation exception does not apply and that the government may be held liable in tort. We agree with the first half of this argument but not with the second. In Block, the Supreme Court ruled that although the misrepresentation exception protects the federal government from liabihty relating to the negligent communication (or non-communication) of information, “it does not bar negbgence actions which focus ... on" }, { "docid": "10318673", "title": "", "text": "the government breached its “duty to use due care in obtaining and communicating information upon which [the plaintiff] may reasonably be expected to rely” merely states the “traditional and commonly understood legal definition of the tort of ‘negligent misrepresentation’ .... ” Id. at 706, 81 S.Ct. at 1300. The Court refined Neustadt’s definition of the tort of misrepresentation in Block v. Neal, - U.S. -, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983). Justice Marshall, writing for a unanimous Court, held that a homeowner’s action for damages caused by a Farmers Home Administration (FmHA) official’s failure to properly inspect and supervise construction of a house was not barred by the misrepresentation exception. The Court distinguished Neustadt as an action involving no injury that the plaintiff would have suffered independently of his reliance on the erroneous FHA appraisal. “[T]he essence of an action for misrepresentation,” the Court noted, “is the communication of misinformation on which the recipient relies.” Id. at -, 103 S.Ct. at 1093. In contrast, the Block tort involved the failure to use due care in carrying out the duties of inspection and supervision, and differed from Neustadt because “the Government’s misstatements [were] not essential to plaintiff’s negligence claim.” Id. Block v. Neal requires a reversal. Although there may be overlap between the tort of misrepresentation and the tort of negligence which makes the distinction between Block and Neustadt amorphous, see - U.S. at-, 103 S.Ct. at 1094, it is clear that Cross Brothers’ complaint alleging negligent supervision and grading bears a stronger resemblance to the nature of the tort in Block than that in Neustadt. The meat was irrevocably devalued when the grade was placed upon it; its value was not affected by Cross’ reliance on government statements. The complaint’s reference to reliance in paragraph three may be nothing more than surplusage and does not necessarily place the tort within the misrepresentation exception. Cf. Cross Brothers Meat Packers v. United States, 533 F.Supp. at 1322 (district court emphasizes plaintiff’s reliance on erroneous grades). As the Court noted in Block, misrepresentation and negligence claims often have certain factual and legal" }, { "docid": "9681273", "title": "", "text": "of Customs.” The plaintiff asserted that the exemption covered only claims for damage caused by the detention itself, such as a decline in economic value, and not for negligent destruction of property while in the possession of the Customs service. Kosak, 104 S.Ct. at 1522-23. The court of appeals in that case held that § 2680(c) shields the United States from “all claims arising out of detention of goods by Customs officers and does not purport to distinguish among types of harm.” 679 F.2d 306, 308 (3d Cir.1982). Analogizing to language contained in other exemptions of the FTCA, the Supreme Court affirmed the Third Circuit stating that “ ‘any claim arising in respect of’ the detention of goods means any claim ‘arising out of’ the detention of goods, and includes a claim resulting from negligent handling of storage of detained property.” 104 S.Ct. at 1524. The Supreme Court rejected the plaintiff’s contention that the legislative history of § 2680(c) and the structure of the statute as a whole implied that the exemption of § 2680(c) was a narrow one. Instead, the Court stated that the statutory language “sweep[s] within the exception all injuries associated in any way with the ‘detention’ of goods.” Id. at 1523. In Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), the Supreme Court supplied perhaps the clearest guidance to lower federal courts called upon to interpret 28 U.S.C. § 2680(h). In that case, the Court addressed the question of whether a plaintiffs claim against the Farmer Home Administration for negligent supervision of the construction of a house “arose out of misrepresentation” -within the meaning of § 2680(h). In its analysis, the Neal Court examined whether the plaintiff had alleged any injury independent of her reliance on the alleged misrepresentation. 103 S.Ct. at 1093. Because the Court found that the government’s duty to use due care in supervising and inspecting construction was distinct from its duty of due care in communicating information, because the government’s misstatements were not essential to Neal’s claim, and because Neal’s claim arose “out of other aspects of" }, { "docid": "14812509", "title": "", "text": "FmHA’s request to cure the defects in accordance with the builder’s warranty to the purchaser, and FmHA declined to pay for certain defects. The Sixth Circuit found that the plaintiff’s complaint was not barred by the misrepresentation exception because 28 U.S.C. § 2674 of the FTCA authorizes suits against the government for the negligence of a federal agency in performing a voluntary undertaking. Block, 460 U.S. at 293, 103 S.Ct. at 1091. The Supreme Court upheld the Sixth Circuit, finding that the plaintiffs Good Samaritan claim was not barred by Neustadt and the misrepresentation exception: “Neustadt alleged no injury that he would have suffered independently of his reliance on the erroneous appraisal. Because the alleged conduct that was the basis of his negligence claim was in essence a negligent misrepresentation, Neustadt’s action was barred under the ‘misrepresentation’ exception.... In this case, unlike Neustadt, the Government’s misstatements are not essential to plaintiff’s negligence claim. The Court of Appeals found that to prevail under the Good Samaritan doctrine, Neal must show that FmHA officials voluntarily undertook to supervise construction of her house; that the officials failed to use due care in carrying out their supervisory activity; and that she suffered some pecuniary injury proximately caused by FmHA’s failure to use due care. FmHA’s duty to use due care to insure the builder adhered to previously approved plans and cure all defects before completing construction is distinct from any duty to use due care in communicating information to the respondent. And it certainly does not ‘appea[r] beyond doubt’ that the only damages alleged in the complaint to be caused by FmHA’s conduct were those attributable to Neal’s reliance on FmHA’s inspection reports.” Block, 460 U.S. at 296-97, 103 S.Ct. at 1093-94. (Citations and footnotes omitted). The Court went on to hold that “[ajlthough FmHA in this case may have undertaken both to supervise construction of Neal’s house and to provide Neal information regarding the progress of the construction, Neal’s action is based solely on the former conduct.” Id. at 299, 103 S.Ct. at 1094-95. The Court ruled that the misrepresentation exception did not" }, { "docid": "13825291", "title": "", "text": "the last inspection, the official issued a final report, signed by Neal, which indicated that the construction accorded with the drawings and specifications approved by FmHA. However, after Neal moved into the house she discovered certain defects in construction. Upon inspection by FmHA officials, 13 such defects, including deviations from approved plans were found. HMA refused to comply with FmHA’s request to repair the defects. FmHA refused Neal’s demand to pay for the corrections. See 103 S.Ct. at 1091. Neal’s suit was dismissed by the district court on a motion to dismiss for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). It found that the government did not have a contractual duty to supervise construction of Neal’s house under federal law or the FmHA regulations, and found that no claim existed under applicable tort law. The United States Court for the Sixth Circuit reversed. Neal v. Bergland, 646 F.2d 1178 (6th Cir.1981). It found that the government could be held liable for negligence in performing a voluntary action, and therefore held that 28 U.S.C. § 2680(h) (1976) was inapplicable and that United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961), was distinguishable. 646 F.2d at 1181-82. The Supreme Court, in affirming the decision of the court of appeals, redefined the nature and extent of the misrepresentation exception. The Court limited the applicability of Neustadt by concluding that 28 U.S.C. § 2680(h) (1976) barred an action for recovery under the FTCA only when a party alleged no injury that he would have suffered independently of his reliance on a misrepresentation or an omission. The Court explained that: Section 2680(h) thus relieves the Government of tort liability for pecuniary injuries which are wholly attributable to reliance on the Government’s negligent misstatement. As a result, the statutory exception undoubtedly preserves sovereign immunity with respect to a broad range of government action. But it does not bar negligence actions which focus not on the Government’s failure to use due care in communicating information, but rather on the Government’s breach of a different duty. Block v. Neal, 103 S.Ct. at" }, { "docid": "2636590", "title": "", "text": "Administration] inspection and appraisal, and who, in reliance thereon, has been induced by the seller to pay a purchase price in excess of the property’s fair market value.” The Court ruled that § 2680(h) encompasses claims arising out of negligent, as well as willful, misrepresentation. Id. at 702, 81 S.Ct. at 1298. Because negligence often underlies an inaccurate representation, a complaint should be examined to determine whether the real cause of the complaint is based on misrepresentation. If so, then an argument that the claim arises out of negligence rather than misrepresentation when the loss is caused by the breach of the government’s duty to use due care in obtaining and communicating information is merely to state the legal definition of the tort of “negligent misrepresentation.” Id. at 703-06, 81 S.Ct. at 1298-1300. Accordingly, the Court held the plaintiff’s claim was based on misrepresentation within the meaning of § 2680(h) and hence not actionable under the FTCA. Id. at 711, 81 S.Ct. at 1302-03. In the second case, Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), the Court again addressed the misrepresentation exception of § 2680(h). The plaintiff had a house constructed with financing provided by the Farmers Home Administration (“FmHA”). The plaintiff claimed that defects were discovered in the house after she set up residence and the defects were partly attributable to the failure of FmHA employees properly to inspect and supervise the construction of her house. The Court held the claim was not barred by the misrepresentation exception. Initially, it noted that the plaintiff in Neus-tadt alleged no injury that he would have suffered independently of his reliance on the erroneous appraisal. Id. at 296, 103 S.Ct. at 1093. The misrepresentation exception, the Court stated, relieves the government of tort liability for injuries which are “wholly attributable” to reliance on government misstatements, “[b]ut it does not bar negligence actions which focus not on the Government’s failure to use due care in communicating information, but rather on the Government’s breach of a different duty.” Id. at 297, 103 S.Ct. at 1093-94. The misstatements by" }, { "docid": "13825290", "title": "", "text": "“government’s misrepresentation of a material fact is just one of the factors relied upon to maintain the suit for economic injury,” then the “claim arises out of misrepresentation.” A review of the cases makes plain that the government’s arguments are incorrect and that subject matter jurisdiction exists in this case. The Supreme Court in Block v. Neal,U.S. -, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), restated the principles to be used in determining the applicability of the 28 U.S.C. § 2680(h) (1976) misrepresentation “exception” to otherwise assertable causes of action under the FTCA. In that case Neal contracted with Home Marketing Associates (HMA) for the construction of a prefabricated house which required HMA’s work to conform to plans approved by Farmers Home Administration (“FmHA”). It also granted FmHA the right to inspect and test all materials and workmanship and reject any that were defective. Neal simultaneously entered into a deed of trust with FmHA and signed a promissory note to cover the construction expenses. During construction an FmHA official inspected the site three times. After the last inspection, the official issued a final report, signed by Neal, which indicated that the construction accorded with the drawings and specifications approved by FmHA. However, after Neal moved into the house she discovered certain defects in construction. Upon inspection by FmHA officials, 13 such defects, including deviations from approved plans were found. HMA refused to comply with FmHA’s request to repair the defects. FmHA refused Neal’s demand to pay for the corrections. See 103 S.Ct. at 1091. Neal’s suit was dismissed by the district court on a motion to dismiss for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). It found that the government did not have a contractual duty to supervise construction of Neal’s house under federal law or the FmHA regulations, and found that no claim existed under applicable tort law. The United States Court for the Sixth Circuit reversed. Neal v. Bergland, 646 F.2d 1178 (6th Cir.1981). It found that the government could be held liable for negligence in performing a voluntary action, and therefore held that 28 U.S.C. §" }, { "docid": "1807913", "title": "", "text": "appraisal conducted and communicated by the FmHA which indicated that a survey of the property was not necessary and that the house was in all respects suitable for purchase with FmHA funds. Like the purchaser in Neustadt, the Bonuchis now argue that the government undertook a specific duty to inspect and appraise the property they wished to purchase with FmHA funds. The Bonuchis contend that it was this duty, having been negligently performed, which caused their injury and not their reliance upon misinformation. We cannot agree with appellants' argument. Although we do not condone carelessness by government employees in obtaining and communicating information incident to their regulatory responsibilities, we must hold, consistent with Neustadt, that such carelessness constituted negligent misrepresentation and as such appellants’ cause of action is precluded by section 2680(h) of the FTCA. It is clear from the facts of this case, as applied to the analysis set forth in Neustadt, that the cause of action was based on the communication of misinformation to the Bonuchis, and not on an undertaking by FmHA officials which was performed in a negligent manner. As we reasoned in Hamre v. United States, 799 F.2d 455 (8th Cir.1986), a case factually analogous to the one before us, “any injury sustained by the appellants was proximately caused by their reliance upon representations made by the government appraiser. Any negligent inspection of the premises could not have caused their injuries, for the defects, if any, were present before the inspection was made.” Id. at 457. As in Harare, the Bonuchis have “ ‘alleged no injury that [they] would have suffered independently of [their] reliance on the erroneous appraisal.’ ” Id. (quoting Block v. Neal, 460 U.S. 289, 296, 103 S.Ct. 1089, 1093, 75 L.Ed.2d 67 (1983)). We conclude that the district court lacked subject matter jurisdiction due to the misrepresentation exception to the FTCA, 28 U.S.C.A. § 2680(h) (West Supp. 1987), and we accordingly affirm the district court’s grant of summary judgment in favor of the government. . The Honorable William W. Hungate, United States District Judge for the Eastern District of Missouri. ." }, { "docid": "5999391", "title": "", "text": "First is the “misrepresentation exception,” which prohibits claims against the United States “arising out of ... misrepresentation.” 28 U.S.C. § 2680(h) (1994). An action based on misrepresentation is characterized by the transmission of allegedly false or incorrect information by the government as an element in the proffered theory of causation. See Block v. Neal, 460 U.S. 289, 296, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983). That is, if the plaintiffs causal chain depends upon the transmission of misinformation by the government, then the exception applies and there is no waiver of sovereign immunity under the FTCA. See, e.g., Leaf v. United States, 661 F.2d 740, 742 (9th Cir.1981). As the district court noted, the FTCA claims by the farmers in this case have a theory of causation based on government misrepresentations. The farmers do not suggest that the FGIS mismeasured their wheat. Indeed, they cannot, as the FGIS measurements were taken when the wheat was possessed by the grain elevators. The farmers, however, argue that the FGIS mismeasurements caused them to receive less money for their wheat, because the grain elevators (who did measure the farmers’ wheat) responded to FGIS mismeasurements by adjusting the bias of their instruments downward. But the farmers do not suggest that the grain elevators’ actions were mandated by the FGIS; instead, their theory is based on the misinformation that the FGIS measurements communicated to the grain elevators. That is, because the grain elevators received information (from prior measurements with NIRT systems) that the NIRT systems were likely to un-derrepresent the protein content, they voluntarily adjusted their instruments accordingly, thereby underrepresenting the farmers’ protein content. Because the recipient of the alleged misinformation is irrelevant to the applicability of the exception, see Alexander v. United States, 787 F.2d 1349, 1350-51 (9th Cir.1986) (FTCA claim barred when third party relied on misinformation to detriment of plaintiffs), we agree with the district court that the farmers’ FTCA claims are based on misinformation and were correctly dismissed. The FTCA claims of the grain elevators, however, are based on a different causation theory — that the FGIS directly mis-measured their wheat" }, { "docid": "14189532", "title": "", "text": "arising out of negligent, as well as intentional, misrepresentation.” Block v. Neal, 460 U.S. 289, 295, 103 S.Ct. 1089, 1092, 75 L.Ed.2d 67 (1983). The misrepresentation exception bars not only claims of negligence in the misrepresentation, but in the conduct underlying the misrepresentation. United States v. Neustadt, 366 U.S. 696, 706-07, 81 S.Ct. 1294, 1300, 6 L.Ed.2d 614 (1961); Anglo-American & Overseas Corp. v. United States, 242 F.2d 236, 237 (2d Cir.1957) (denying claim for damages from destruction of tomato paste imported in reliance on import “release notices” issued by the Food and Drug Administration); Jones v. United States, 207 F.2d 563 (2d Cir.1953) (denying claim for damages from government’s negli gent estimate of the oil-producing capacity of land), cert. denied, 347 U.S. 921, 74 S.Ct. 518, 98 L.Ed. 1075 (1954). A plaintiff may not by artful pleading avoid the statutory exceptions to the FTCA “In determining the applicability of the § 2680(h) exception, a court must look, not to the theory upon which the plaintiff elects to proceed, but rather to the substance of the claim which he asserts.” Lambertson v. United States, 528 F.2d 441, 443 (2d Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374 (1976). Recovery is not barred by the misrepresentation exception of § 2680(h), however, if the plaintiff alleges the breach of a cognizable duty owed to him which is “distinct from any duty to use due care in communicating information.” Block, 460 U.S. at 297, 103 S.Ct. at 1093. In Block, the plaintiff received a Farmers Home Administration (“FmHA”) loan for a prefabricated house. The contract with the builder required that the house conform to FmHA standards and be subject to FmHA inspection and testing. Id. at 291, 103 S.Ct. at 1090. After the house was built, an FmHA inspector approved it. Id. at 292, 103 S.Ct. at 1091. The plaintiff later discovered numerous construction flaws and failures to conform to FmHA standards. She sued the government for its negligent inspections. The Supreme Court found that, although the misrepresentation exception barred suit for breach of the duty to use care" }, { "docid": "2636589", "title": "", "text": "(7th Cir.1990); Zinser v. Rose, 868 F.2d 938, 939 (7th Cir.1989). A. Scope of the Misrepresentation Exception This case turns on the proper application of the misrepresentation exception to the FTCA. Briefly stated, the FTCA is a limited waiver of the United States government’s sovereign immunity. The government agrees to be subject to liability for the torts of its employees, in accordance with the law of the state in which the alleged tort occurred, which were committed in the course of their employment. 28 U.S.C. § 1346(b). This waiver is subject to exceptions, including “any claim arising out of ... misrepresentation.” Id. at § 2680(h). Two Supreme Court decisions have addressed the scope of the misrepresentation exception. In the first case, United States v. Neustadt, 366 U.S. 696, 697-98, 81 S.Ct. 1294, 1295-96, 6 L.Ed.2d 614 (1961), the question before the Court was whether the United States could be held liable under the FTCA “to a purchaser of residential property who has been furnished a statement reporting the results of an inaccurate FHA [Federal Housing Administration] inspection and appraisal, and who, in reliance thereon, has been induced by the seller to pay a purchase price in excess of the property’s fair market value.” The Court ruled that § 2680(h) encompasses claims arising out of negligent, as well as willful, misrepresentation. Id. at 702, 81 S.Ct. at 1298. Because negligence often underlies an inaccurate representation, a complaint should be examined to determine whether the real cause of the complaint is based on misrepresentation. If so, then an argument that the claim arises out of negligence rather than misrepresentation when the loss is caused by the breach of the government’s duty to use due care in obtaining and communicating information is merely to state the legal definition of the tort of “negligent misrepresentation.” Id. at 703-06, 81 S.Ct. at 1298-1300. Accordingly, the Court held the plaintiff’s claim was based on misrepresentation within the meaning of § 2680(h) and hence not actionable under the FTCA. Id. at 711, 81 S.Ct. at 1302-03. In the second case, Block v. Neal, 460 U.S. 289, 103" }, { "docid": "13302886", "title": "", "text": "approval of defective building materials); Baroni v. United States, 662 F.2d 287, 289 (5th Cir.1981) (per curiam) (holding to like effect in connection with the FHA’s underestimation of the predicted flood fine for a housing development); cf. Preston v. United States, 596 F.2d 232, 238 (7th Cir.1979) (holding that an FTCA claim alleging negbgent auditing “amounts to an abegation of misrepresentation by implication”). We turn now to the second category of claims: those related to the government’s role in supervising the construction of the plaintiffs’ homes. Invoking the Supreme Court’s decision in Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), the plaintiffs argue that the misrepresentation exception does not apply and that the government may be held liable in tort. We agree with the first half of this argument but not with the second. In Block, the Supreme Court ruled that although the misrepresentation exception protects the federal government from liabihty relating to the negligent communication (or non-communication) of information, “it does not bar negbgence actions which focus ... on the Government’s breach of a different duty.” Id. at 297, 103 S.Ct. 1089. The Court further reasoned that if, as was abeged, the FmHA undertook an active role in the construction of the plaintiffs home (thus going far beyond mere assurances regarding the quabty of the structure), it might be held to have assumed an additional duty under the Good Samaritan doctrine. Id. Such a duty would obligate the government “to use due care to ensure that the builder adhere to previously approved plans and cure ab defects before completing construction [which] is distinct from any duty to use due care in communicating information.” Id. Applying Block, we hold that this second category of claims lies outside the realm of the misrepresentation exception. This does not mean, however, that the case should have been allowed to proceed. The government also invokes the FTCA’s discretionary function exception. On this issue, Block is wholly inapposite; although the Block Court found that the misrepresentation exception did not bar the claim there at issue, it noted explicitly that the" }, { "docid": "14189533", "title": "", "text": "the claim which he asserts.” Lambertson v. United States, 528 F.2d 441, 443 (2d Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374 (1976). Recovery is not barred by the misrepresentation exception of § 2680(h), however, if the plaintiff alleges the breach of a cognizable duty owed to him which is “distinct from any duty to use due care in communicating information.” Block, 460 U.S. at 297, 103 S.Ct. at 1093. In Block, the plaintiff received a Farmers Home Administration (“FmHA”) loan for a prefabricated house. The contract with the builder required that the house conform to FmHA standards and be subject to FmHA inspection and testing. Id. at 291, 103 S.Ct. at 1090. After the house was built, an FmHA inspector approved it. Id. at 292, 103 S.Ct. at 1091. The plaintiff later discovered numerous construction flaws and failures to conform to FmHA standards. She sued the government for its negligent inspections. The Supreme Court found that, although the misrepresentation exception barred suit for breach of the duty to use care in obtaining and communicating information, a tort action might lie -if Tennessee law provided for suit for breach of a Good Samaritan duty. Id. at 294-95, 103 S.Ct. at 1092. The plaintiff could prevail on such a claim if she could prove that the FmHA undertook to supervise the construction of her home and did so negligently. Id.; see also National Carriers, Inc. v. United States, 755 F.2d 675 (8th Cir.1985) (holding that USDA agent’s negligent failure to identify and tag beef exposed to ditchwater after trucking accident was distinct from negligent misrepresentation that separation of exposed and unexposed beef was unnecessary); Jimenez-Nieves v. United States, 682 F.2d 1 (1st Cir.1982) (Breyer, J.) (holding that dishonoring of benefit checks by Social Security Administration was distinct from agency employee’s misrepresentation which caused the check to be dishonored); Ware v. United States, 626 F.2d 1278, 1283 (5th Cir.1980) (holding that negligence of government in destroying cattle it misdiagnosed as tubercular was distinct from negligent representation that the cattle were diseased). B. Duty to Prohibit Export Dorking alleges" }, { "docid": "13302884", "title": "", "text": "theory of liability. The plaintiffs contend that the government’s intimate role in approving, financing, and monitoring the housing projects implicitly conveyed an assurance that the homes constituted secure domiciles, and that the lack of any warning calculated to alert the plaintiffs to the likelihood of future harm reinforced those implied assurances. Even if such acts and omissions were negligent — a matter on which we take no view — the misrepresentation exception precludes the assertion of a cause of action against the government based upon either miscommunication or non-communication of the information in question. See JBP Acquisitions, 224 F.3d at 1266 (holding that a “failure to communicate, as well as direct miscommunication, is encompassed by the misrepresentation exception”); Green, 629 F.2d at 584 (noting that the misrepresentation exception “bar[s] suits based on a failure to give any warning to injured parties”). The plaintiffs also accuse the government of negligently inspecting their homes and failing to detect the likely problems associated with future flooding. These claims are likewise precluded by the misrepresentation exception. A negligent inspection, in and of itself, cannot cause injury. Harm can occur (and, thus, liability can attach) only if the inspection leads either to the communication of inaccurate information or to a failure to communicate precautionary information. See Farmers State Sav. Bank v. FmHA 891 F.2d 200, 202 (8th Cir.1989) (holding that injuries to FTCA plaintiffs who allege faulty inspection or assessment are “caused by rebanee on the representations of government officials and not by reliance on an undertaking that those officials performed negligently”); see also Comm’l Union Ins. Co. v. United States, 928 F.2d 176, 179 (5th Cir.1991) (holding that the misrepresentation exception covers instances in which “the chain of causation from the alleged negligence to the alleged injury depends upon the transmission of misinformation by a government agent”). This takes us full circle — and brings the negligent inspection claims within the purview of the misrepresentation exception. See, e.g., Schneider v. United States, 936 F.2d 956, 961-62 (7th Cir.1991) (holding that the misrepresentation exception precludes a suit seeking recovery for damages from a federal agency’s" }, { "docid": "5999390", "title": "", "text": "the claims based on the FTCA on the grounds that it lacked subject matter jurisdiction over these claims. See Gollehon Farming, 17 F.Supp.2d at 1151. We review jurisdictional issues de novo. See GAF Bldg. Mats. v. Elk Corp., 90 F.3d 479, 481 (Fed. Cir.1996). Because the FTCA is a law not unique to this court’s jurisdiction, we defer to the law of the regional circuit — in this case the Ninth Circuit — from which the case arises. See Biodex Corp. v. Loredan Biomedical, Inc., 946 F.2d 850, 855-56 (Fed.Cir.1991). The FTCA provides that the United States may be held liable in tort when a federal employee is negligent in the scope of his or her employment “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b) (1994). This general waiver of sovereign immunity, however, is subject to important limitations, two of which resolve the FTCA claims at issue here. A First is the “misrepresentation exception,” which prohibits claims against the United States “arising out of ... misrepresentation.” 28 U.S.C. § 2680(h) (1994). An action based on misrepresentation is characterized by the transmission of allegedly false or incorrect information by the government as an element in the proffered theory of causation. See Block v. Neal, 460 U.S. 289, 296, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983). That is, if the plaintiffs causal chain depends upon the transmission of misinformation by the government, then the exception applies and there is no waiver of sovereign immunity under the FTCA. See, e.g., Leaf v. United States, 661 F.2d 740, 742 (9th Cir.1981). As the district court noted, the FTCA claims by the farmers in this case have a theory of causation based on government misrepresentations. The farmers do not suggest that the FGIS mismeasured their wheat. Indeed, they cannot, as the FGIS measurements were taken when the wheat was possessed by the grain elevators. The farmers, however, argue that the FGIS mismeasurements caused them to receive less money for" }, { "docid": "10318672", "title": "", "text": "204 (E.D.Pa.1982). Cross Brothers appeals. II. The breadth of the misrepresentation exception is defined not by the law of the state where the tort allegedly occurred, but by the Supreme Court’s interpretation of what Congress meant by the language used in section 2680(h). United States v. Neustadt, 366 U.S. 696, 706, 81 S.Ct. 1294, 1300, 6 L.Ed.2d 614 (1961). Until recently the Neustadt case was the leading authority on the scope of the misrepresentation exception. Neustadt was induced to purchase a home for less than fair market value because he relied on an appraisal statement furnished to the seller by the Federal Housing Authority (FHA). When structural defects materialized after he took up residence, Neustadt filed suit under the FTCA alleging that the FHA had negligently inspected and appraised the property. The Court held that the action was barred because it fell within the misrepresentation exception of section 2680(h). Id. at 711, 81 S.Ct. at 1302. Citing the Restatement of Torts § 552 which defines negligent misrepresentation, the Court said that a claim alleging that the government breached its “duty to use due care in obtaining and communicating information upon which [the plaintiff] may reasonably be expected to rely” merely states the “traditional and commonly understood legal definition of the tort of ‘negligent misrepresentation’ .... ” Id. at 706, 81 S.Ct. at 1300. The Court refined Neustadt’s definition of the tort of misrepresentation in Block v. Neal, - U.S. -, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983). Justice Marshall, writing for a unanimous Court, held that a homeowner’s action for damages caused by a Farmers Home Administration (FmHA) official’s failure to properly inspect and supervise construction of a house was not barred by the misrepresentation exception. The Court distinguished Neustadt as an action involving no injury that the plaintiff would have suffered independently of his reliance on the erroneous FHA appraisal. “[T]he essence of an action for misrepresentation,” the Court noted, “is the communication of misinformation on which the recipient relies.” Id. at -, 103 S.Ct. at 1093. In contrast, the Block tort involved the failure to use due care" }, { "docid": "2168080", "title": "", "text": "value. The Supreme Court determined that the purchaser’s cause of action was one for negligent misrepresentation and the Section 2680(h) exception barred the claim. In Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), the Court addressed an action brought by a home purchaser who obtained a loan from the FmHA for the construction of a prefabricated house. After obtaining the loan, the purchaser contracted with a builder to construct the house. The contract required the work to conform to plans approved by FmHA and granted FmHA the right to inspect and test all materials and workmanship and reject any that were defective. Once the house was completed, an FmHA official inspected the home and reported that the building met the plans and specifications. Upon taking possession of the house, the purchaser found a number of defects. The Supreme Court held that the buyer’s claim under the FTCA was not solely for negligent misrepresentation, but also for the agency’s breach of the duty to use care to insure that the builder adhered to the approved plans and cured all defects before completing construction. The Court held that since the FmHA voluntarily assumed the duties of providing technical assistance to the borrower, reviewing the construction plans and contracts, and inspecting the construction, the government’s misstatements were not essential to the appellants’ negligence claim. The Hamres contend their present claim properly falls within the scope of the Block v. Neal decision. They argue that their “negligent inspection” cause of action is not premised upon the FmHA inspector’s misstatements solely, but on a breach of duties distinct from those duties forming the basis of a misrepresentation claim. In support of their argument, they cite Justice Marshall’s statement: Section 2680(h) * * * does not bar negligence actions which focus not on the government’s failure to use due care in communicating information, but rather on the government’s breach of a different duty. Id. at 298, 103 S.Ct. at 1094. In further support of their position, they cite Minnesota case law which sets forth a general duty to warn of hidden" }, { "docid": "7823659", "title": "", "text": "identify ‘those circumstances which are within the words and reason of the exception’ — no less and no more.” Kosak v. United States, — U.S.—, 104 S.Ct. 1519, 1523 n. 9, 79 L.Ed.2d 860 (1984) (quoting Dale-hite v. United States, 346 U.S. 15, 31, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953)). We are guided in this effort by the Court’s analysis in Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983). In that case, plaintiff Neal received a loan from the Farmers Home Administration (FmHA) to finance the construction of a new home. Regulations required the FmHA to provide technical assistance to the borrower, to review the construction plans and the contract, and to make inspections. After moving into the house, Neal discovered several defects and eventually asked the FmHA to pay to correct them. Upon its refusal, she sued under the FTCA alleging that the defects were partly attributable to FmHA officials’ negligence in inspecting and supervising construction of the house. The issue before the Supreme Court was whether the action was barred under section 2680(h) as a “claim arising out of ... misrepresentation.” In holding that Neal’s claims were not barred by section 2680(h), the Court distinguished its earlier holding in United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961), a case involving a pre-purchase inspection and appraisal of a home by the Federal Housing Administration. The Court explained that the “gravamen of the action against the Government in Neustadt was that the plaintiff was misled by [the appraisal] prepared by the Government. Neustadt alleged no injury that he would have suffered independently of this reliance on the erroneous appraisal.” 460 U.S. at 296, 103 S.Ct. at 1093. In contrast, the Court found that the government’s misstatements were not essential to Neal’s claim. In so finding, the Court focused on the government’s duty, stating that its duty to use due care in supervising and inspecting construction “is distinct from any duty to use due care in communicating information to respondent.” 460 U.S. at 297, 103 S.Ct. at 1094." }, { "docid": "21082826", "title": "", "text": "with contract rights.” 28 U.S.C. § 2680(h). The test in applying the misrepresentation exception is whether the essence of the claim involves the government’s failure to use due care in obtaining and communicating information. See Block v. Neal, 460 U.S. 289, 296, 103 S.Ct. 1089, 1093, 75 L.Ed.2d 67 (1983) (explaining that “[t]he essence of an action for misrepresentation, whether negligent or intentional, is the communication of misinformation on which the recipient relies”); United States v. Neustadt, 366 U.S. 696, 706-07, 81 S.Ct. 1294, 1300-01, 6 L.Ed.2d 614 (1961) (holding that the breach of the “duty to use due care in obtaining and communicating information upon which that party may reasonably be expected to rely in the conduct of his economic affairs, is only to state the traditional and commonly understood legal definition of the tort of ‘negligent misrepresentation,’ ... which there is every reason to believe Congress had in mind when it placed the word ‘misrepresentation’ before the word ‘deceit’ in § 2680(h)”). The exception covers actions for negligence when the basis for the negligence action is an underlying claim for misrepresentation. See Metz v. United States, 788 F.2d 1528, 1534 (11th Cir.1986) (emphasizing that a “cause of action which is distinct from one of those excepted under 2680(h) will nevertheless be deemed to ‘arise out of an excepted cause of action when the underlying governmental conduct which constitutes an excepted cause of action is ‘essential’ to plaintiffs claim”); Rey v. United States, 484 F.2d 45, 49 (5th Cir.1973) (barring a claim for negligence where the “negligently erroneous transmission of misinformation is the crucial element in the chain of causation from defendant’s negligence to plaintiffs’ damages”); Mt. Homes, Inc. v. United States, 912 F.2d 352, 355 (9th Cir.1990) (holding that plaintiffs claim for failure to communicate correct sales tax information “is in essence an action for negligent misrepresentation”); Leaf v. United States, 661 F.2d 740, 742 (9th Cir.1981) (holding plaintiffs negligence claim barred by misrepresentation exception because the alleged false representation was “within the chain of causative events upon which plaintiffs claim is founded”). “It is the substance of" } ]

[ { "docid": "22119608", "title": "", "text": "Boat Club, Inc. v. Oselka, 31 Mich.App. 465, 188 N.W.2d 127, 130-31 (1971) (stating that with ambiguous contract “trial court should consider the language employed, the subject matter, and the surrounding circumstances under which the parties entered into the agreement; it should effectuate the intent of the parties when the agreement was consummated”); Genesee Merchants Bank & Trust Co. v. Sefa, 23 Mich.App. 423, 178 N.W.2d 826, 828-29 (1970) (“In determining the intent of the parties where the agreed language proves ambiguous, surrounding facts and circumstances may be considered for the purpose of interpretation, and statements of the parties contemporaneous with the making of the agreement are admissible as evidence.”). Post-hoc interpretations of this nature are irrelevant to the parties’ intent at the time of the agreement. C. Motion to Alter or Amend Judgment Under Rule 59(e) The Lac Vieux put forward several arguments in their motion to alter or amend. The district court denied the motion, determining that the arguments were either previously rejected or untimely raised. A denial of a motion to alter or amend a judgment under Rule 59(e) is typically reviewed for abuse of discretion. Keweenaw Bay Indian Community v. United States, 136 F.3d 469, 474 (6th Cir.1998). On appeal, the Lac Vieux are forwarding one argument — that “the District Court erred ... by failing to recognize that Proposal E transferred control over the exclusive right to operate electronic games of chance from the Tribes to the [Michigan Gaming Control Board] and the City of Detroit.” Putting aside the issue of the correctness of the argument, the Lac Vieux raised it tardily. The Lae Vieux acknowledge that they did not make the argument prior to filing their Rule 59(e) motion, but they argue that they did not raise the issue because they never thought the district court would determine otherwise. A motion under Rule 59(e) is not an opportunity to re-argue a case. FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir.1992) (“Rule 59(e) motions are aimed at re consideration, not initial consideration. Thus, parties should not use them to raise arguments which" } ]

[ { "docid": "22467216", "title": "", "text": "knowledge of the product being sold. We conclude that the district court correctly found that the parties had engaged in an arm’s-length transaction as a matter of law. Even taking the well-pled facts as true, the sisters’ cause of action for breach of fiduciary duty fails to state a claim upon which relief can be granted. C. Second amended complaint 1. Standard of review Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend a pleading should be “freely given when justice so requires.” The purpose of Rule 15(a) is “to reinforce the principle that cases ‘should be tried on their merits rather than the technicalities of pleadings.’ ” Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir.1986) (quoting Tefft v. Seward, 689 F.2d 637, 639 (6th Cir.1982)). A district court has discretion in determining whether justice requires that the amendment be allowed. See Moore, 790 F.2d at 559. On appeal, we generally review a district court’s denial of a motion to amend for abuse of discretion. See id. When the district court bases its decision on a legal conclusion that the proposed amendment would not survive a motion to dismiss, however, we review the decision de novo. See LRL Properties v. Portage Metro Housing Auth., 55 F.3d 1097, 1104 (6th Cir.1995). 2. The district court erred when it denied the motion to amend After dismissing the first amended complaint upon substantive grounds, the district court proceeded to consider Greenberg and Rossmann’s motion to file a second amended complaint. The district court denied the motion on the basis that such a filing would be futile, concluding that none of the proposed amendments would cure the defects present in the first amended complaint. Without changing the substance of the six causes of action, the proposed second amended complaint primarily alters the language of the sisters’ “vanishing-premium” theory to a “single-premium” theory. The term “single premium” more accurately describes the character of Greenberg and Rossmann’s alleged purchase. They have maintained throughout this action that they entered into life insurance contracts with Life of Virginia that required them" }, { "docid": "22781414", "title": "", "text": "6 Charles Allen Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure § 1489; see also Murrow Furniture Galleries, Inc. v. Thomasville Furniture Indust., Inc., 889 F.2d 524, 526 n. 3 (4th Cir.1989) (“The Court denied their [Rule] 59(e) motion, thereby effectively denying their [Rule 15(a) ] motion as well.”); DuBuit v. Harwell Enters., Inc., 540 F.2d 690, 692 (4th Cir.1976) (“[T]he final order of the court disposed of all of the issues between these two plaintiffs and the defendants, and since no appeals were taken the judgment became a finality and terminated the case as to them. Under these circum stances, the case could only be reopened or the order revised under the provisions of Rule 59 or 60.... ”). A conclusion that the district court abused its discretion in denying a motion to amend, however, is sufficient grounds on which to reverse the district court’s denial of a Rule 59(e) motion. See Foman, 371 U.S. at 182, 83 S.Ct. 227 (reversing denial of motion for reconsideration of judgment of dismissal where district court abused its discretion in denying motion to amend); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 n. 1 (5th Cir.1981) (“Where judgment has been entered on the pleadings, a holding that the trial court should have permitted amendment necessarily implies that [the] judgment ... was inappropriate and that therefore the motion to vacate should have been granted.”); Adams, 739 F.2d at 864 (adopting standard set forth in Dussouy). Regardless of whether the motion to amend is filed pre— or post-judgment, we review for abuse of discretion the district court’s decision on a motion to amend. See Foman, 371 U.S. at 182, 83 S.Ct. 227. We believe that under the unusual circumstances presented here, Laber’s motion to amend must be granted. First, and most important here, there is no indication that Laber’s omission from his original complaint of the legal theory he now seeks to pursue was in bad faith. In fact, Laber’s original complaint was arguably proper under Pecker and Morris.- Laber’s case is not a run-of-the-mill case where the" }, { "docid": "22877986", "title": "", "text": "v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.1983). Our scope of review in this case turns on the interrelationship between the scope of review applicable to Rule 59(e)-motions and that applicable to Rule 15(a) motions. The Fifth Circuit was confronted with a similar situation in Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594 (5th Cir.1981). In Dussouy, the district court had dismissed the complaint without leave to amend. The court of appeals reversed, and in doing so held that, where a timely motion was filed under Fed.R.Civ.P. 59(e), the Rule 15 and Rule 59(e) inquiries turned on the same factors. 660 F.2d at 597 n. 1. We agree and adopt the Fifth Circuit’s approach. Thus, in examining each possible ground on which the district court could be sustained, we will apply the standard of review which would be applicable had the motion been brought without the complication of a prior grant of summary judgment, although the factors that must guide our review may be affected by the fact that a summary judgment was granted before plaintiffs sought leave to amend their complaint. Therefore, we must first examine the substance of the theory that plaintiffs attempted to assert in their second amended complaint, to determine whether the amended complaint states a cause of action. Next, we must consider the relationship between that claim and what was decided by the previous panel in this case, to see whether claim is barred by that decision. Third, we must determine whether the cause of action is barred by the statute of limitations. Our scope of review over these three questions is plenary. Finally, we will examine the factors which must inform the district court’s discretion in denying a motion to reopen a judgment and amend a complaint under Rules 59(e) and 15(a), to determine whether that discretion was abused. III. A. Plaintiffs are members of Local 416 and beneficiaries under the Plan. They seek to sue Gould directly for breach of an obligation under an arbitration award entered pursuant to the grievance procedure of a collective bargaining agreement. The obligation allegedly'" }, { "docid": "22877984", "title": "", "text": "Where a district court refuses to allow a plaintiff to amend his complaint pursuant to Fed.R.Civ.P. 15(a), the decision may only be reversed if the district court abused its discretion. Heyl & Patterson International, Inc. v. F.D. Rich Housing, Inc., 663 F.2d 419, 425 (3d Cir.1981). Similarly, when a district court rejects a motion to alter or amend a judgment, the standard of review is whether the district court abused its discretion. The district court’s exercise of discretion, however, must be within the limits of the law. The Sixth Circuit has explicitly held that a court of appeals has plenary review on appeal from the denial of a Fed.R.Civ.P. 59(e) motion, where the decision denying the motion is based on a legal error. Huff v. Metropolitan Life Insurance Co., 675 F.2d 119, 122 n. 5 (6th Cir.1982). See also 6A J. Moore, Moore’s Federal Practice § 59.15[4] at 59-336. We agree, and therefore hold that, in reviewing an order denying a motion to alter or amend a judgment filed pursuant to Fed.R.Civ.P. 59(e), the appropriate scope of review over matters committed to the discretion of the district court is abuse of discretion, but over matters of law the court of appeals has plenary review. Fed.R.Civ.P. 15 embodies the liberal pleading philosophy of the federal rules. Under Rule 15(a), a complaint may be amended once as a matter of right and afterward by leave of the court, which is to be freely granted. See Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 597-98 (5th Cir.1981). This liberal amendment philosophy limits the district court’s discretion to deny leave to amend. The district court may deny leave to amend only if a plaintiff’s delay in seeking amendment is undue, motivated by bad faith, or prejudicial to the opposing party. Foman v. Davis, 371 U.S. at 182, 83 S.Ct. at 230; Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir.1984). The court may also refuse to allow an amendment that fails to state a cause of action. Massarsky" }, { "docid": "22877985", "title": "", "text": "scope of review over matters committed to the discretion of the district court is abuse of discretion, but over matters of law the court of appeals has plenary review. Fed.R.Civ.P. 15 embodies the liberal pleading philosophy of the federal rules. Under Rule 15(a), a complaint may be amended once as a matter of right and afterward by leave of the court, which is to be freely granted. See Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 597-98 (5th Cir.1981). This liberal amendment philosophy limits the district court’s discretion to deny leave to amend. The district court may deny leave to amend only if a plaintiff’s delay in seeking amendment is undue, motivated by bad faith, or prejudicial to the opposing party. Foman v. Davis, 371 U.S. at 182, 83 S.Ct. at 230; Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir.1984). The court may also refuse to allow an amendment that fails to state a cause of action. Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.1983). Our scope of review in this case turns on the interrelationship between the scope of review applicable to Rule 59(e)-motions and that applicable to Rule 15(a) motions. The Fifth Circuit was confronted with a similar situation in Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594 (5th Cir.1981). In Dussouy, the district court had dismissed the complaint without leave to amend. The court of appeals reversed, and in doing so held that, where a timely motion was filed under Fed.R.Civ.P. 59(e), the Rule 15 and Rule 59(e) inquiries turned on the same factors. 660 F.2d at 597 n. 1. We agree and adopt the Fifth Circuit’s approach. Thus, in examining each possible ground on which the district court could be sustained, we will apply the standard of review which would be applicable had the motion been brought without the complication of a prior grant of summary judgment, although the factors that must guide our review may be affected by the fact that a summary judgment" }, { "docid": "23451058", "title": "", "text": "abandoned any argument relating to the district court’s grant of summary judgment on the breach of contract claim when he failed to raise this issue on appeal. See McMurphy v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir.1986). II. ANALYSIS A. Rose’s Motion to Amend His Original Complaint Rose contends that the district court erred when it denied his motion to amend his original complaint, which prevented him from adding a claim of bad faith against Hartford in this insurance dispute. Rule 16(a) of the Federal Rules of Civil Procedure provides that leave to amend “shall be freely given when justice so requires.” We review a district court’s order denying a Rule 15(a) motion to amend for an abuse of discretion. General Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir.1990). Although a district court has discretion to deny a motion to amend a complaint after an answer has been filed, we have held on several occasions that a district court abuses its discretion when it fails to state a basis for its decision to deny a motion to amend. Jet, Inc. v. Sewage Aeration Sys., 165 F.3d 419, 425 (6th Cir.1999); Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir.1986); see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (“[An] outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.”). In the present case, the district court issued a marginal entry order denying Rose’s motion for leave to amend his complaint, but it did not provide a justification or explanation for its denial. Because the district court denied Rose’s motion without explanation, it has clearly abused its discretion in this case. Nevertheless, the district court’s abuse of its discretion could amount to a harmless error if adding Rose’s proposed amendment would have been futile. See, e.g., Jet, Inc., 165 F.3d at 425 (holding that magistrate judge’s denial of motion to" }, { "docid": "23247782", "title": "", "text": "could not withstand a motion to dismiss, we review a district court’s denial of leave to amend for abuse of discretion. Monette v. Elect. Data Sys. Corp., 90 F.3d 1173, 1188 (6th Cir.1996). Similarly, we review an order denying a motion to alter or amend a judgment under Rule 59(e) for abuse of discretion, unless such motion seeks review of a legal conclusion. Perez v. Aetna Life Ins. Co., 150 F.3d 550, 554 (6th Cir.1998) (en banc); see also Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir.1998). Where a timely motion to amend judgment is filed under Rule 59(e), the Rule 15 and Rule 59 inquiries turn on the same factors. Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 272 (3d Cir.2001); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 n. 1 (5th Cir.1981). In denying leave to amend, abuse of discretion may occur when a district court does not state the basis for its denial or fails to consider the competing interests of the parties and likelihood of prejudice to the opponent. Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir.1986). Generally, leave to amend is “freely given when justice so requires.” Keweenaw Bay Indian Cmty. v. State of Michigan, 11 F.3d 1341, 1348 (6th Cir.1993) (quoting Fed.R.Civ.P. 15(a)). In the securities litigation context, leave to amend is particularly appropriate where the complaint does not allege fraud with particularity. E.g., Chill v. Gen. Elect. Co., 101 F.3d 263, 271 (2d Cir.1996). Denial may be appropriate, however, where there is “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also 3 Moore’s Federal Practice § 15.14[1] (3d ed.1997). Ordinarily, delay alone, does not justify denial of leave to amend. Sec. Ins. Co. v. Kevin Tucker & Assocs., Inc., 64 F.3d 1001, 1009" }, { "docid": "6250312", "title": "", "text": "decision.” Wilburn v. Robinson, 480 F.3d 1140, 1147 (D.C.Cir.2007). Because the district court ruled on the State’s Rule 59(e) motion before NEF raised the issue of untimeliness, NEF has forfeited its timeliness defense. Nevertheless, NEF contends that “[t]he time for appealing the November 23, 2005 Order was not tolled because the State’s Rule 59(e) motion was untimely.” NEF’s Br. at 4; see Wilburn, 480 F.3d at 1153 (Brown, J. dissenting) (“Courts applying Eberhart or Kontrick to time constraints have, to date, addressed only the permissibility of late filings, not the effect late filings would have on subsequent deadlines.”). As an initial point, we note that this argument would not prevent review of the State’s Rule 59(e) motion, which constitutes a “judgment or order” under Rule of Appellate Procedure 4(a)(1). More fundamentally, however, we conclude that, where a party forfeits an objection to the untimeliness of a Rule 59(e) motion, that forfeiture makes the motion “timely” for the purpose of Rule 4(a)(4)(A)(iv). The Rules themselves do not define “timely,” but we can discern no reason for holding that an otherwise properly filed motion that was considered by the district court would fail to toll the time for filing a notice of appeal. We conclude that we have jurisdiction to entertain the State’s appeal. II. Merits “We generally review a denial of a motion to alter or amend the judgment under Rule 59(e) for abuse of discretion.” Perez v. Aetna Life Ins. Co., 150 F.3d 550, 554 (6th Cir.1998) (citing Huff v. Metro. Life Ins. Co., 675 F.2d 119, 122 (6th Cir.1982)). However, to the extent that the motion to alter or amend was based on an erroneous legal doctrine, the standard of review is de novo. See Huff, 675 F.2d at 122 n. 5 (“[W]hen the lower court rejects an application under Rule 59(e) based upon an erroneous legal doctrine, our standard of review is the same as in other cases of legal error.”). Importantly, “[a] district court’s interpretation of a consent decree or judgment is a matter of law subject to de novo review, and the underlying findings of fact" }, { "docid": "22256836", "title": "", "text": "for lack of personal jurisdiction. IY. THE DISTRICT COURT ABUSED ITS DISCRETION IN JORDAN I IN FINDING FUTILITY In order to resolve all of the contested issues on this appeal, we must consider Stripling’s contention that the district court erred in affirming the magistrate judge’s decision that the joinder of Guardian would have been futile. In deciding Stripling’s Motion to Amend, the magistrate judge concluded that there was no basis for liability against Guardian; therefore, its joinder would have been futile. The district court upheld this conclusion, stating that it was not clearly erroneous. Stripling argues that under the considerations of Federal Rule of Procedure 15(a), Guardian should have been joined as a party. Therefore, Stripling contends that the magistrate judge abused its discretion in precluding Guardian’s joinder. We agree. A. Standard of Review We review a district court’s denial of leave to amend under Rule 15(a) for an abuse of discretion. See Whitmire v. Victus Ltd., 212 F.3d 885, 887 (5th Cir.2000); Martin’s Herend Imports, Inc. v. Diamond & Gem Trading U.S. Am. Co., 195 F.3d 765, 770 (5th Cir.1999). The district court’s discretion is limited, however, by Rule 15(a), which states that leave to amend must be “freely given when justice so requires.” Fed.R.Civ.P. 15(a); see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir.1994). “In the context of motions to amend pleadings, ‘discretion’ may be misleading, because Fed.R.Civ.P. 15(a) ‘evinces a bias in favor of granting leave to amend.’ ” Martin’s Herend Imports, Inc., 195 F.3d at 770 (quoting Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir.1981)). Unless there is a “substantial reason to deny leave to amend, the discretion of the district court is not broad enough to permit denial.” Dussouy, 660 F.2d at 598; Martin’s Herend Imports, Inc., 195 F.3d at 770. B. Discussion It is within the district court’s discretion to deny a motion to amend if it is futile. See Martin’s Herend Imports, Inc., 195 F.3d at 771; Leffall, 28 F.3d" }, { "docid": "23247781", "title": "", "text": "a Rule 60(b) motion: Where a party seeks to make a motion under Fed.R.Civ.P. 60(b) to vacate the judgment of a district court, after notice of appeal has been filed, the proper procedure is for that party to file the motion in the district court. First Nat’l Bank of Salem, Ohio v. Hirsch, 535 F.2d 343 (6th Cir.1976). If the district judge believes there should be relief from the judgment, the district court is to indicate that it would grant the motion. The appellant should then make a motion in this court for a remand of the case so that the district court can grant relief. Fed.R.Civ.P. 60(b). Id. at 359 n. 1. The plaintiffs did not file a Rule 60(b) motion in the district court. Accordingly, we cannot consider their request on appeal. In light of plaintiffs’ Rule 59(e) motion, however, we may review their challenge to the district court’s denial of leave to amend. 2. Except in cases where the district court bases its decision on the legal conclusion that an amended complaint could not withstand a motion to dismiss, we review a district court’s denial of leave to amend for abuse of discretion. Monette v. Elect. Data Sys. Corp., 90 F.3d 1173, 1188 (6th Cir.1996). Similarly, we review an order denying a motion to alter or amend a judgment under Rule 59(e) for abuse of discretion, unless such motion seeks review of a legal conclusion. Perez v. Aetna Life Ins. Co., 150 F.3d 550, 554 (6th Cir.1998) (en banc); see also Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir.1998). Where a timely motion to amend judgment is filed under Rule 59(e), the Rule 15 and Rule 59 inquiries turn on the same factors. Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 272 (3d Cir.2001); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 n. 1 (5th Cir.1981). In denying leave to amend, abuse of discretion may occur when a district court does not state the basis for its denial or fails to consider the competing interests of the" }, { "docid": "23356484", "title": "", "text": "to the liability of Lieutenant Canning. Further, a constitutional claim for denial of medical care has an objective component that requires the existence of a “sufficiently serious” medical need. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). “[T]he inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Id. Plaintiff, however, never explains what serious medical need that the police put in jeopardy by virtue of their refusal to let him go to the hospital. The paramedic’s report states that, after Plaintiffs breathing was brought under control, Plaintiff said that he felt fine. There simply is no evidence from which to infer that Plaintiff was faced with a substantial risk of serious medical harm. Plaintiff presented no testimony from the paramedic regarding the recommendation that he be taken to a hospital, and Plaintiff has not claimed what medical need, if any, would have been satisfied had he been transported to a hospital. Accordingly, Plaintiffs medical need claim fails on the merits. VI. MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT A. Standard of Review “Except in cases where the district court bases its decision on the legal conclusion that an amended complaint could not withstand a motion to dismiss, [this Court] review[s] a district court’s denial of leave to amend for abuse of discretion.” Morse v. McWhorter, 290 F.3d 795, 799 (6th Cir.2002) (citing Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1188 (6th Cir.1996)). B. Analysis After a responsive pleading has been filed to a complaint, Federal Rule of Civil Procedure 15(a) provides that a party may file an amended complaint “only by leave of court or by written consent of the adverse party.” FED. R. CIV.P. 15(a). Rule 15(a) provides that such “leave shall be freely given when justice so requires.” Id. Rule 15 “reinforce [s] the principle that cases ‘should be tried on their merits rather than the technicalities of pleadings,’ ” Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir.1986) (quoting Teffi v. Seward, 689 F.2d 637, 639 (6th Cir.1982))," }, { "docid": "22157396", "title": "", "text": "reply brief offered more detail. They alleged (1) that Azurix was merely a vehicle for Enron to conceal its own debt; (2) that Azurix vastly overpaid for the Buenos Aires concession; and (3) that Azurix vastly overpaid for its acquisition of Wessex. The reply brief quotes various news accounts to bolster the allegation that Azurix officials must have known the company was doomed, in spite of optimistic statements to the public. The district court denied the motion because “[plaintiffs had ample time to seek to amend their complaint before the court ruled on defendants’ motion to dismiss.” The court also stated that “plaintiffs have not acted with diligence and ... plaintiffs have not shown what facts, if any, they could now allege to overcome the deficiencies pointed out in the court’s [opinion].” II. DISCUSSION A. The district court did not abuse its discretion in denying leave to amend The parties dispute whether the plaintiffs’ motion for leave to amend falls under Federal Rule of Civil Procedure 15(a), governing the amendment of pleadings, or Rule 59(e), governing the amendment of judgments. Although review of both types of motions is nominally under the “abuse of discretion” rubric, see S. Group, Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir.1993), the district court’s discretion is considerably less under Rule 15(a). “In the context of motions to amend pleadings, ‘discretion’ may be misleading, because Fed.R.Civ.P. 15 (a) ‘evinces a bias in favor of granting leave to amend.’ ” Martin’s Herend Imports v. Diamond & Gem Trading, 195 F.3d 765, 770 (5th Cir.1999) (quoting Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir. Nov.1981)). Rule 15(a) states that leave to amend “shall be freely given when justice so requires.” By contrast, a motion to alter or amend the judgment under Rule 59(e) “must clearly establish either a manifest error of law or fact or must present newly discovered evidence” and “cannot be used to raise arguments which could, and should, have been made before the judgment issued.” Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990) (quoting Fed. Deposit Ins." }, { "docid": "6250313", "title": "", "text": "holding that an otherwise properly filed motion that was considered by the district court would fail to toll the time for filing a notice of appeal. We conclude that we have jurisdiction to entertain the State’s appeal. II. Merits “We generally review a denial of a motion to alter or amend the judgment under Rule 59(e) for abuse of discretion.” Perez v. Aetna Life Ins. Co., 150 F.3d 550, 554 (6th Cir.1998) (citing Huff v. Metro. Life Ins. Co., 675 F.2d 119, 122 (6th Cir.1982)). However, to the extent that the motion to alter or amend was based on an erroneous legal doctrine, the standard of review is de novo. See Huff, 675 F.2d at 122 n. 5 (“[W]hen the lower court rejects an application under Rule 59(e) based upon an erroneous legal doctrine, our standard of review is the same as in other cases of legal error.”). Importantly, “[a] district court’s interpretation of a consent decree or judgment is a matter of law subject to de novo review, and the underlying findings of fact are reviewed for clear error.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 371 (6th Cir.1998). Therefore, to the extent that the district court’s denial of the State’s motion to alter or amend rests on a legal interpretation of the Agreed Order, we review its legal conclusions de novo. As a preliminary matter, we note that the State’s notice of appeal is sufficient to place the merits of the district court’s November 23, 2005 denial of the State’s motion to clarify before this Court. This is true notwithstanding the fact that the State’s notice of appeal only explicitly references the district court’s denial of its Rule 59(e) motion. “It has long been the rule ‘that an appeal of a final judgment draws into question all prior non-final rulings and orders.’ ” Caudill v. Hollan, 431 F.3d 900, 905 (6th Cir.2005) (quoting McLaurin v. Fischer, 768 F.2d 98, 101 (6th Cir.1985)). In Inge v. Rock Financial Corp., 281 F.3d 613, 618 (6th Cir.2002), this Court held that a notice of appeal that" }, { "docid": "23247783", "title": "", "text": "parties and likelihood of prejudice to the opponent. Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir.1986). Generally, leave to amend is “freely given when justice so requires.” Keweenaw Bay Indian Cmty. v. State of Michigan, 11 F.3d 1341, 1348 (6th Cir.1993) (quoting Fed.R.Civ.P. 15(a)). In the securities litigation context, leave to amend is particularly appropriate where the complaint does not allege fraud with particularity. E.g., Chill v. Gen. Elect. Co., 101 F.3d 263, 271 (2d Cir.1996). Denial may be appropriate, however, where there is “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also 3 Moore’s Federal Practice § 15.14[1] (3d ed.1997). Ordinarily, delay alone, does not justify denial of leave to amend. Sec. Ins. Co. v. Kevin Tucker & Assocs., Inc., 64 F.3d 1001, 1009 (6th Cir.1995); see also Tefft v. Seward, 689 F.2d 637, 639 n. 2 (6th Cir.1982) (“Delay that is neither intended to harass nor causes any ascertainable prejudice is not a permissible reason, in and of itself to disallow an amendment of a pleading.”). At some point, however, “delay will become ‘undue,’ placing an unwarranted burden on the court, or will become ‘prejudicial,’ placing an unfair burden on the opposing party.” Adams v. Gould, 739 F.2d 858, 863 (3d Cir.1984). And while Rule 15 plainly embodies a liberal amendment policy, in the post-judgment context, we must also take into consideration the competing interest of protecting the “finality of judgments and the expeditious termination of litigation.” Nat’l Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 245 (2d Cir.1991) (quoting 6 C. Wright & A. Miller, Federal Practice & Procedure § 1489, at 694 (1990)); see also Vielma v. Eureka Co., 218 F.3d 458, 468 (5th Cir.2000) (ruling that a trial court’s discretion to allow amendments “narrows considerably after entry of judgment.”); Diersen v. Chicago" }, { "docid": "23449258", "title": "", "text": "where the district court failed to articulate its reasons for denying leave to amend). . Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir.1981). See also Foman, 371 U.S. at 182, 83 S.Ct. at 230 (recognizing that the reason for denying leave to amend may be \"apparent or declared”). . Rhodes, 654 F.2d at 1153-54. Accord Feldman v. Am. Mem'l Life Ins. Co., 196 F.3d 783, 793 (7th Cir.1999) (\"Although the district court did not articulate its basis for decision, denial of a motion to amend pleadings without explanation does not constitute abuse of discretion if the delay and prejudice that would result from such amendment was apparent.”). . See Dussouy, 660 F.2d at 598 & n. 2; Duggins, 195 F.3d at 834; Doherty v. Davy Songer, Inc., 195 F.3d 919, 922, 927 & n. 5 (7th Cir. 1999); Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998); Moore v. City of Paducah, 790 F.2d 557, 562 (6th Cir. 1986). . See Lowrey, 117 F.3d at 246 n. 2. . Bell, 160 F.3d at 454. See also Little v. Liquid Air Corp., 952 F.2d 841, 846 (5th Cir. 1992) (affirming order denying leave to amend where the amended complaint would have \"established an entirely new factual basis for the plaintiffs' claims” and thus \"radically altered the nature of trial on the merits”), reinstated in relevant part, 37 F.3d 1069, 1073 & n. 8 (5th Cir. 1994) (en banc); Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (\"The new claims set forth in the amended complaint would have greatly altered the nature of the litigation and would have required defendants to have undertaken, at a late hour, an entirely new course of defense.”). .Because we affirm the district court’s denial of leave to amend on grounds of undue prejudice to the opposing party, we need not analyze the district court's alternative holding concerning futility. . Emphasis added. . La. Civ.Code Ann. art. 2997(5) (West 1994 & Supp.2003). . La. Civ.Code Ann art. 2050 (West 1994); see Brown v." }, { "docid": "22081022", "title": "", "text": "one full week on the job. After quitting, Perez applied for reinstatement of his worker’s compensation benefits. In an administrative hearing, a Michigan worker’s compensation magistrate denied Perez’s request for reinstatement of his benefits, concluding that Perez could and did perform work as a lab technician. Perez sued Aetna under ERISA “to recover benefits due to him under the terms of his plan — ” Id. § 1132(a)(1)(B). The district court granted summary judgment to Aetna and denied Perez’s cross-motion for summary judgment. Perez then moved to alter or amend the judgment,under Fed.R.Civ.P. 59(e), which the district court denied. Perez appealed the district court’s grant of summary judgment for Aetna and also its denial of his motion to amend the judgment. The original panel of this court reversed the district court’s decision and we granted this en banc review. II. STANDARD OF REVIEW We generally review a denial of a motion to alter or amend the judgment under Rule 59(e) for abuse of discretion. Huff v. Metropolitan Life Ins. Co., 675 F.2d 119, 122 (6th Cir.1982). However, when the Rule 59(e) motion seeks review of a grant of summary judgment, as in the case at bar, we apply a de novo standard of review. Columbia Gas Transmission Corp. v. Limited Corp., 951 F.2d 110, 112 (6th Cir.1991) (citing Huff, 675 F.2d at 122-23 n. 5). Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when there is no genuine issue of material fact for trial, and the moving party is entitled to judgment as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing Fed.R.Civ.P. 56(e)). In ruling on a motion for summary judgment, all reasonable inferences must be drawn in favor of Perez, the non-moving party. Timmer v. Michigan Dep’t of Commerce, 104 F.3d 833, 842 (6th Cir.1997) (citation omitted). III. COLLATERAL ESTOPPEL Before turning to the principal issue on appeal, we must dispose of Aetna’s argument that the refusal by a Michigan worker’s compensation magistrate to reinstate Perez’s worker’s" }, { "docid": "23441158", "title": "", "text": "did not abuse its discretion in denying Rule 59(e) relief. B. Jacobs based his alternative motion, which called for vacating the judgment and entering an order of dismissal with leave to amend the complaint, on the provisions of Federal Rule of Civil Procedure 15(a). He first seized upon Rule 15(a)(1), which states that “[a] party may amend its pleading once as a matter of course ... before being served with a responsive pleading.” Fed.R.Civ.P. 15(a)(1) (2007) (amended 2009). Noting that TPX had not filed a “responsive pleading, but only a motion to dismiss, [which is] not considered a responsive pleading for purposes of Rule 15(a)[(l)],” Jacobs’s motion stated that “a plaintiff may amend the complaint once as a matter of right.” Since he had not previously exercised that right, Jacobs contended, in effect, that an intervening judgment could not abolish the right. Jacobs further asserted that the district court abused its discretion by refusing to allow an amendment under Rule 15(a)(2), which directs the court to “freely give leave [to amend] when justice so requires.” The problem with Jacobs’s arguments is that Rule 15(a), by its plain language, governs amendment of pleadings before judgment is entered; it has no application after judgment is entered. In United States ex rel. Atkins v. McInteer, we made this clear. [Rule] 15(a) has no application once the district court has dismissed the complaint and entered final judgment for the defendant. Czeremcha v. Int’l Ass’n of Machinists and Aerospace Workers, AFL-CIO, 724 F.2d 1552, 1556 (11th Cir.1984). Wright, Miller & Kane, Federal Practice and Procedure, § 1489. Post-judgment, the plaintiff may seek leave to amend if he is granted relief under Rule 59(e) or Rule 60(b)(6). Id.; Czeremcha, 724 F.2d at 1556; Ahmed v. Dragovich, 297 F.3d 201, 207-09 (3d Cir.2002); Lindauer v. Rogers, 91 F.3d 1355, 1356 (9th Cir.1996); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 n. 1 (5th Cir.1981). 470 F.3d 1350, 1361 n.22 (11th Cir.2006). Given this precedent, we could hardly hold that the district court abused its discretion in denying Jacobs leave to amend his complaint post-judgment. IV." }, { "docid": "23449257", "title": "", "text": "481 F.2d 1187, 1191-92 (9th Cir.1973) (holding that a district court’s conclusory denial of leave to amend was an abuse of discretion); Gootee v. Colt Indus., Inc., 712 F.2d 1057, 1065 n. 7 (6th Cir.1983) (remanding the district court's unexplained denial of leave to amend with instructions to \"either allow the amendment or explain the basis upon which it refuses to ’freely’ grant it”); Pittston Co. v. United States, 199 F.3d 694, 706 (4th Cir.1999) (reversing the district court when \"in its order denying the motion for leave to amend, [the court] did not indicate that it found any bad faith on Pittston’s part and did not identify how it believed the Government might be prejudiced by the late amendment”). See also Duggins v. Steak ’N Shake, Inc., 195 F.3d 828, 834 (6th Cir.1999) (noting the importance of the need for the district court to give reasons for its decision to deny leave to amend); Doherty v. Davy Songer, Inc., 195 F.3d 919, 928 (7th Cir.1999) (remanding to the district court for findings of prejudice where the district court failed to articulate its reasons for denying leave to amend). . Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir.1981). See also Foman, 371 U.S. at 182, 83 S.Ct. at 230 (recognizing that the reason for denying leave to amend may be \"apparent or declared”). . Rhodes, 654 F.2d at 1153-54. Accord Feldman v. Am. Mem'l Life Ins. Co., 196 F.3d 783, 793 (7th Cir.1999) (\"Although the district court did not articulate its basis for decision, denial of a motion to amend pleadings without explanation does not constitute abuse of discretion if the delay and prejudice that would result from such amendment was apparent.”). . See Dussouy, 660 F.2d at 598 & n. 2; Duggins, 195 F.3d at 834; Doherty v. Davy Songer, Inc., 195 F.3d 919, 922, 927 & n. 5 (7th Cir. 1999); Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998); Moore v. City of Paducah, 790 F.2d 557, 562 (6th Cir. 1986). . See Lowrey, 117 F.3d at 246 n." }, { "docid": "22157397", "title": "", "text": "governing the amendment of judgments. Although review of both types of motions is nominally under the “abuse of discretion” rubric, see S. Group, Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir.1993), the district court’s discretion is considerably less under Rule 15(a). “In the context of motions to amend pleadings, ‘discretion’ may be misleading, because Fed.R.Civ.P. 15 (a) ‘evinces a bias in favor of granting leave to amend.’ ” Martin’s Herend Imports v. Diamond & Gem Trading, 195 F.3d 765, 770 (5th Cir.1999) (quoting Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir. Nov.1981)). Rule 15(a) states that leave to amend “shall be freely given when justice so requires.” By contrast, a motion to alter or amend the judgment under Rule 59(e) “must clearly establish either a manifest error of law or fact or must present newly discovered evidence” and “cannot be used to raise arguments which could, and should, have been made before the judgment issued.” Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990) (quoting Fed. Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986)); see also S. Constructors Group, Inc., 2 F.3d at 611 (recognizing that “[d]enial of a motion to vacate, alter, or amend a judgment so as to permit the filing of an amended pleading draws the interest in finality of judgments into tension with the federal policy of allowing liberal amendments under the rules”). In this Circuit, when a district court dismisses the complaint, but does not terminate the action altogether, the plaintiff may amend under Rule 15(a) with permission of the district court. See Whitaker v. City of Houston, 963 F.2d 831, 835 (5th Cir.1992). When a district court dismisses an action and enters a final judgment, however, a plaintiff may request leave to amend only by either appealing the judgment, or seeking to alter or reopen the judgment under Rule 59 or 60. See Dussouy, 660 F.2d at 597 n. 1; see also 3 James Wm. Moore et al„ Moore’s Federal Practice § 15.12[2] (3d ed.2003); 6 Charles Alan Wright, et al., Federal PRACTICE AND" }, { "docid": "23356485", "title": "", "text": "FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT A. Standard of Review “Except in cases where the district court bases its decision on the legal conclusion that an amended complaint could not withstand a motion to dismiss, [this Court] review[s] a district court’s denial of leave to amend for abuse of discretion.” Morse v. McWhorter, 290 F.3d 795, 799 (6th Cir.2002) (citing Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1188 (6th Cir.1996)). B. Analysis After a responsive pleading has been filed to a complaint, Federal Rule of Civil Procedure 15(a) provides that a party may file an amended complaint “only by leave of court or by written consent of the adverse party.” FED. R. CIV.P. 15(a). Rule 15(a) provides that such “leave shall be freely given when justice so requires.” Id. Rule 15 “reinforce [s] the principle that cases ‘should be tried on their merits rather than the technicalities of pleadings,’ ” Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir.1986) (quoting Teffi v. Seward, 689 F.2d 637, 639 (6th Cir.1982)), and therefore assumes “a liberal policy of permitting amendments.” Ellison v. Ford Motor Co., 847 F.2d 297, 300 (6th Cir.1988). Based on the sequence of events in this case, the magistrate judge should have granted Plaintiff leave to file his Third Amended Complaint, except to the extent he sought leave to name Police Chief Bonner and Commander Desrosiers as defendants. On December 31, 2002, Plaintiff moved to compel Defendants’ responses to a request for production of documents. Plain tiffs request had sought copies of the daily activity logs for all patrol officers on the morning shift for January 9 through January 11, 2000; copies of all citizen complaints filed against the Taylor Police Department in 1999; copies of all citizen complaints against Taylor officers in 2000 and 2001; and a schematic diagram of the jail where Plaintiff had been confined. On January 2, 2003, Plaintiff moved for leave to file the Third Amended Complaint. Both motions were referred to Magistrate Donald A. Scheer. On February 5, 2003, Magistrate Judge Scheer granted in part Plaintiffs motion" } ]

[ { "docid": "22538886", "title": "", "text": "sufficient reason for reducing a fee. The result is what matters. If, on the other hand, a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained. Application of this principle is particularly important in complex civil rights litigation involving numerous challenges to institutional practices or conditions. This type of litigation is lengthy and demands many hours of lawyers’ services. Although the plaintiff often may succeed in identifying some unlawful practices or conditions, the range of possible success is vast. That the plaintiff is a “prevailing party” therefore may say little about whether the expenditure of counsel’s time was reasonable in relation to the success achieved. In this case, for example, the District Court’s award of fees based on 2,557 hours worked may have been reasonable in light of the substantial relief obtained. But had respondents prevailed on only one of their six general claims, for example the claim that petitioners’ visitation, mail, and telephone policies were overly restrictive, see n. 1, supra, a fee award based on the claimed hours clearly would have been excessive. There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment. This discretion, however, must be exercised in light of the considerations we have identified. C A request for attorney’s fees should not result in a second major litigation. Ideally, of course, litigants will settle the amount of a fee. Where settlement is not possible, the fee applicant bears the" } ]

[ { "docid": "23267236", "title": "", "text": "success.” See Hensley, 461 U.S. at 436, 103 S.Ct. 1933; Bankston, 60 F.3d at 1255-66; Ustrak, 851 F.2d at 988-89. In Hensley, the Supreme Court set forth the basic approach to be taken by a district court in determining whether to adjust the modified lodestar amount to account for a plaintiffs limited success. See 461 U.S. at 434-38, 103 S.Ct. 1933. In a case involving a single claim or related claims, the court is directed to ask whether “the plaintiff achievefd] a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award.” Id. at 434, 103 S.Ct. 1933. In so doing, the court “should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Id. at 435, 103 S.Ct. 1933; see also Jaffee v. Redmond, 142 F.3d 409, 414 (7th Cir.1998). When a plaintiff has obtained an excellent result, his attorney should recover a fully compensable fee (ie., the modified lodestar amount), and the fee “should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit.” Hensley, 461 U.S. at 435, 103 S.Ct. 1933. However, “[i]f ... a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount.” Id. at 436, 103 S.Ct. 1933. In such a case, the district court has the discretion to reduce the modified lodestar amount to reflect the degree of success obtained. See id. at 436-37, 103 S.Ct. 1933. Spegon contends that the district court abused its discretion by reducing the modified lodestar amount by fifty percent to account for Spegon’s limited success in this case. Spegon first argues that the size of his judgment should have no bearing upon his- ability to collect a fully compensable attorneys’ fee because there is no rule of proportionality in FLSA cases between the judgment recovered and the amount of fees to be awarded. Spegon is correct in that an attorney’s failure" }, { "docid": "16657136", "title": "", "text": "claims.” Id. The third and final step, after a lodestar calculation has been made and any unsuccessful efforts on unrelated claims have been excluded, requires the Court to award “ ‘some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff.’ ” Grissom, 549 F.3d at 321 (quoting Johnson v. City of Aiken, 278 F.3d 333, 337 (4th Cir.2002)). It is appropriate for the Court to reduce an award at the third step of the analysis if “ ‘the relief, however significant, is limited in comparison to the scope of the litigation as a whole.’ ” McAfee, 738 F.3d at 92 (quoting Hensley, 461 U.S. at 439-40, 103 S.Ct. 1933). “What the court must ask is whether ‘the plaintiff achieved a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award.’” Id (quoting Hensley, 461 U.S. at 434, 103 S.Ct. 1933). Accordingly, when “a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive' amount” even- in cases “where the plaintiffs claims were interrelated, nonfrivolous, and raised in good faith.” Hensley, 461 U.S, at 436, 103 S.Ct. 1933. An attorney’s fee award under § 1988 is therefore not driven by whether it was reasonable to file suit or whether plaintiffs counsel litigated the case “with devotion and skill”; rather, “the most critical factor is the degree of success obtained.” Id. III. Discussion A. Lodestar Analysis 1. Number of Reasonable Hours Expended As indicted above, it is undisputed that Plaintiff is a “prevailing party” and Defendants do not contest a reasonable fee award, to compensate Plaintiffs outside counsel in this case. Defendants do, however, challenge the propriety of any fee award to Plaintiff’s in-house counsel. Additionally,. Defendants further argue, that many of the hours for which Plaintiff-seeks compensation are duplicative hours spent in conferences, time spent on tasks not sufficiently related to the litigation, including pre-complaint time, and travel time inappropriately billed at- full hourly rates. Defendants also seek an" }, { "docid": "23512114", "title": "", "text": "those, concerns by only permitting reason able fees. See 42 U.S.C. § 1988(b). To require Defendants to pay reasonable attorney’s fees relevant to the prosecution of the successful claim does not create a windfall, but fulfills the Congressional purpose of § 1988(b). The fact that Plaintiff failed to recover on all theories of liability is not a bar to recovery of attorney’s fees. This concern was addressed by the Supreme Court in Hensley. In Hensley, the Supreme Court recognized that “the most critical factor [in determining the amount of attorney’s fees to award] is the degree of success obtained.” 461 U.S. at 436, 103 S.Ct. 1933. The Supreme Court explained: Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount that is reasonable in relation to the results obtained. Id. at 440, 103 S.Ct. 1933. To deny an award of attorney’s fees notwithstanding Plaintiffs clear victory on one of his claims for relief is an abuse of discretion; a reasonable fee in this case is not no fee at all. On remand, the district court must determine the reasonable fee for Plaintiff in this case. Because Plaintiff “achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount.” Id. at 436, 103 S.Ct. 1933 (emphasis added). Therefore, the district court’s inquiry is more searching, though it “should not result in a second major litigation.” Id. at 437, 103 S.Ct. 1933. In such cases, we have employed a two-part test: (1) whether Plaintiff prevailed on unrelated claims (“[hjours expended on unrelated, unsuccessful claims should not be included in" }, { "docid": "2640632", "title": "", "text": "rate may be an excessive amount.” Hensley, 461 U.S. at 436, 103 S.Ct. 1933. In explaining the possibility of an excessive fee recovery, the Court emphasized that the degree of success obtained is the most critical factor. Id. In adjudicating a matter of first impression, the Third Circuit Court of Appeals has held that settlement negotiations and Rule 68 Offers are a permissible factor for consideration in awarding attorney fees, and that courts may consider the amount in a rejected settlement offer to the amount ultimately awarded by the jury as an indication of the success in the litigation as a whole. See Lohman v. Duryea Borough, 574 F.3d 163, 167-69 (3d Cir.2009). Consistent with this holding, courts nationwide have compared the amount offered in rejected settlement offers to the amount ultimately obtained at judgment to assess the success of the results obtained. See, e.g., Mogilevsky, 311 F.Supp.2d at 220-21 (holding that the plaintiff was only entitled to fifty percent (50%) of the attorney fees incurred after his refusal of the defendant’s Rule 68 offer of judgment in an FLSA action, and then further reducing the lodestar calculation by fifteen percent (15%) based on the limited results obtained, specifically noting the plaintiffs failure to prove the defendant’s willful violation of the FLSA); Wales, 192 F.Supp.2d at 1328-29 (holding that limited monetary recovery of $21, 000 on FLSA claim warranted attorney fee award of only thirty-three percent (33%) of lodestar amount of $1,067,349.69, or $352,225.40). Other courts have upheld larger percentage reductions in light of the limited results obtained. See, e.g., Popham v. City of Kennesaw, 820 F.2d 1570, 1578 (11th Cir.1987) (affirming a sixty-seven percent (67%) reduction in the lodestar due to limited success in section 1983 action); Schofield v. Trustees of the Univ. of Pa., 919 F.Supp. 821, 831-32 (1996) (holding that fact that employee obtained damage award of $40,000 did not compel finding that she was entitled to fees and reduced lodestar amount by two-thirds in light of employee’s limited success); Orson, Inc. v. Miramax Film, Corp., 14 F.Supp.2d 721 (1998) (reducing the lodestar by seventy-five percent (75%)" }, { "docid": "6197286", "title": "", "text": "recommendation of the reduction in plaintiffs’ attorney’s fees to reflect the limited number of class members who obtained individual relief in Stage II. The appellant, the Board of School Commissioners of Mobile County (“Board”), contends that the method used by the magistrate in calculating the reduction did not bear any relationship to the actual degree of success obtained by the plaintiffs. The defendants urge that the attorney fees award should be reduced by the number of unsuccessful claims over the total number of claims. This argument is expressly refuted by relevant Supreme Court authority. In Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the Court discussed in detail the district court’s exercise of its discretion in adjusting the lode star amount according to the “results obtained” factor. The Court observed that this is a particularly crucial concern “where a plaintiff is deemed ‘prevailing’ even though he succeeded on only some of his claims for relief.” Id. at 434, 103 S.Ct. at 1940, 76 L.Ed.2d at 51. After noting situations when an adjustment to the lodestar may be appropriate, the Court outlined a method for accomplishing the reduction emphasizing that “the most critical factor is the degree of success obtained.” Id. at 436, 103 S.Ct. at 1941, 76 L.Ed.2d at 52. The Court distinguished between claims different in all respects from the plaintiff’s successful claims, which should be excluded in considering the amount of a reasonable fee, and related claims, some of which were wholly or partially unsuccessful. In a case involving related claims where the overall results are excellent, “the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit.” Id. at 435, 103 S.Ct. at 1940, 76 L.Ed.2d at 52. Where a plaintiff achieved only limited success on related claims, however, the district court should award only that amount of fees that is reasonable in relation to the results obtained. Id. at 436, 103 S.Ct. at 1941, 76 L.Ed.2d at 51-52. In determining what is reasonable, the Court stated: ' We agree with the" }, { "docid": "23267237", "title": "", "text": "not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit.” Hensley, 461 U.S. at 435, 103 S.Ct. 1933. However, “[i]f ... a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount.” Id. at 436, 103 S.Ct. 1933. In such a case, the district court has the discretion to reduce the modified lodestar amount to reflect the degree of success obtained. See id. at 436-37, 103 S.Ct. 1933. Spegon contends that the district court abused its discretion by reducing the modified lodestar amount by fifty percent to account for Spegon’s limited success in this case. Spegon first argues that the size of his judgment should have no bearing upon his- ability to collect a fully compensable attorneys’ fee because there is no rule of proportionality in FLSA cases between the judgment recovered and the amount of fees to be awarded. Spegon is correct in that an attorney’s failure to obtain every dollar sought on behalf of his client does not automatically mean that the modified lodestar amount should be reduced. See Bankston, 60 F.3d at 1255-56. However, by the same token, “district courts both can and should look to the degree of success a party achieves in deciding how generous a fee award should be.” Shea v. Galaxie Lumber & Constr. Co., 152 F.3d 729, 736 (7th Cir.1998). In other words, although the fee award need not be proportionate to the amount of damages a plaintiff actually recovers, it is a factor that a court should consider when contemplating a reduction of the modified lodestar amount. See City of Riverside v. Rivera, 477 U.S. 561, 574, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986). As the district court noted, Spegon obtained a judgment from the Diocese in an amount far less than originally sought. Spegon raised two claims in his complaint against the Diocese: (1) that the Bishop violated the FLSA and Illinois law by not paying him the statutorily mandated overtime rate and" }, { "docid": "23692642", "title": "", "text": "success merited an even greater reduction in the fee award. I do not believe that the plaintiffs’ success was limited. Therefore, I would clearly reject defendant Brown's appeal with regard to the issue of limited success. In addition, I would not, as the majority does in part III.B. of the opinion, invite the district court to exercise its discretion a second time. The parties agree that the district court properly calculated the lodestar figure, which is a presumptively reasonable amount for an award of attorney’s fees. The plaintiffs are entitled to the lodestar amount. In Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933 (1983), the Supreme Court explained that district courts may sometimes reduce the lodestar amount when the plaintiffs, though prevailing parties, achieve only limited success in the litigation. When the unsuccessful claims are distinct in all respects from the successful claims, Hensley held that the time spent on the unsuccessful claims should not be compensated. 461 U.S. at 440, 103 S.Ct. at 1943. This is not such a case, as the claims here arise out of a single incident and a common core of facts. In such a case, Hensley made it clear that “[wjhere a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his- attorney’s fee reduced simply because the district court did not adopt each contention raised.” Id. The Supreme court in Hensley did not authorize a reduction simply because some proportion of the defendants are not found liable. When considering whether plaintiffs’ limited success merits an adjustment of the lodestar figure, district courts “should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” 461 U.S. at 435,103 S.Ct. at 1940. Because the emphasis is on the reasonableness of the number of hours spent on the litigation, a reduction is not warranted unless the attorneys expended time that was not reasonably necessary to achieve success on the claims that were successful. In this ease, plaintiff sued forty-one defendants, prevailed against three, and won verdicts totaling" }, { "docid": "3852190", "title": "", "text": "Court may exercise its “authority to adjust the lodestar” only “in accordance with accepted principles.” Coutin, 124 F.3d at 337 (citing Hensley, 461 U.S. at 429-31, 103 S.Ct. 1933). As the City points out, a “preeminent consideration in the fee-adjustment process” is the “results obtained” by the plaintiffs. Id. at 338 (citing Hensley, 461 U.S. at 432, 440, 103 S.Ct. 1933); see also, e.g., Rodriguez-Hernandez, 132 F.3d at 859 (“In a civil rights lawsuit, ‘[t]he result is what matters’.... ” (alteration in original) (quoting Hensley, 461 U.S. at 435,103 ,S.Ct. 1933)). In adjusting the lodestar for the results obtained, a court “ ‘may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.’ ” Andrade v. Jamestown Hous. Auth., 82 F.3d 1179, 1191 (1st Cir.1996) (quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933). The guiding principle, nonetheless, is that a court “should award only that amount of fees that is reasonable in relation to the results obtained” at trial. Id. (citing Hensley, 461 U.S. at 435, 438-4, 103 S.Ct. 1933); see also, e.g., id. (“Hensley makes clear that where multiple claims are interrelated and a plaintiff has achieved only limited success, awarding her the entire lodestar amount would ordinarily be excessive.” (citing Hensley, 461 U.S. at 436, 103 S.Ct. 1933)). The First Circuit considers, in combination, three “meanings” of the term “results obtained”: “a plaintiffs success claim by claim,” “the relief actually achieved,” and “the societal importance of the right which has been vindicated.” Coutin, 124 F.3d at 338. The Court briefly discusses each meaning and then applies them, together, to this case. A. Clainv-by-Claim Success .This approach focuses on the number of substantive causes of action on which a plaintiff prevailed. See id. at 340. “If a plaintiff prevails .on only some of multiple claims, then a fee reduction may be in order.” Id. at 339. In contrast, when plaintiffs have “prevailed up and down the line” on their claims, “a claims-based, results-obtained fee reduction is wholly inappropriate.” Id. at 340; see also Rodriguez-Hemandez, 132 F.3d" }, { "docid": "12027463", "title": "", "text": "and prejudgment interest). D. Both parties contest the attorneys’ fees awarded to Dotson’s counsel. Pfizer claims that the amount of attorneys’ fees awarded — $375,000—was excessive considering that Dotson recovered $666,610.50 on his claims. The FMLA directs the award of reasonable attorneys’ fees to a prevailing plaintiff. 29 U.S.C. § 2617(a)(3); see McDonnell v. Miller Oil Co., 134 F.3d 638, 640 (4th Cir.1998). The amount of attorneys’ fees awarded is at the trial court’s discretion. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1359 (4th Cir.1995) (citing Rum Creek Coal Sales v. Caperton, 31 F.3d 169, 174 (4th Cir.1994)). A reviewing court should reverse discretionary fee awards only “if under all the facts and circumstances [the award] is clearly wrong.” Id. (citation and quotation omitted) (alteration in original). In calculating a reasonable lodestar fee, the district court looks to “the nature and extent of the services supplied, the customary hourly rate of compensation, the number of hours expended, the skill required, the complexity of the case, and the success achieved by the plaintiff.” Id. (citing Rum Creek Coal Sales, 31 F.3d at 175). The reasonable number of hours and reasonable rate is determined by reference to the twelve factor test set forth in Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir.1974). See, e.g., McDonnell, 134 F.3d at 640. Pfizer claims that, because it prevailed on its after-acquired evidence defense, Dotson won only a limited victory. Thus, the Court should reduce the attorneys’ fees awarded, because “the most critical factor is the degree of success obtained.” Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). “Even when an award of attorneys’ fees is mandatory, the district court may decrease the amount of fees that might otherwise be awarded in order to account for the plaintiffs limited success.” McDonnell, 134 F.3d at 641. Here, the district court reduced the amount claimed by Dotson’s attorneys from $550,000 to $375,000. Even if Pfizer prevailed, or partially prevailed, on the after-acquired evidence defense it raised, we do not find the district court’s attorneys’ fee award “clearly wrong.”" }, { "docid": "23054449", "title": "", "text": "bring only her non-frivolous claims. Based on these considerations, the magistrate downwardly adjusted the lodestar to $2,500. On appeal, Andrade argues that the $2,500 fee award compensated her attorney for a meager twenty hours of work, far too few to litigate a federal civil rights suit from complaint to jury verdict. Accordingly, she claims that this ninety-one percent reduction of the lodestar, from $26,487.50 to $2,500, was a misapplication of Hensley and an abuse of discretion. We disagree. Hensley makes clear that where multiple claims are interrelated and a plaintiff has achieved only limited success, awarding her the entire lodestar amount would ordinarily be excessive. Id. at 436, 103 S.Ct. at 1941. Hensley, therefore, counsels that, while “[t]here is no precise rule or formula for making these determinations,” a court “may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.” Id. In short, the test that emerged from Hensley is that a court should award only that amount of fees that is reasonable in relation to the results obtained. Id. at 435, 438-40, 103 S.Ct. at 1940-43 (counselling district courts to “focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation”). Although we may not have chosen to reduce the size of Andrade’s fee award so appreciably, we need not interfere with a fee award if the district court’s determinations “seem[ ] plausible, given what has transpired in the litigation.” Metropolitan Dist. Comm’n, 847 F.2d at 18. In the present case, the magistrate carefully weighed the correct factors and arrived at a result barely within a supportable range. See generally Farrar v. Hobby, 506 U.S. 103, 115, 113 S.Ct. 566, 575, 121 L.Ed.2d 494 (1992) (holding that when a § 1983 plaintiff obtains only nominal damages of one dollar, “the only reasonable fee is usually no fee at all”); Lewis v. Kendrick, 944 F.2d 949, 954-56 (1st Cir.1991) (denying all fees where plaintiff recovered only $1,000 and submitted a request for a $50,000 fee award);" }, { "docid": "21094377", "title": "", "text": "therefore take these matters into account when it reduces plaintiffs’ fee award. II. Level of Success Achieved in the Litigation Defendants request that plaintiffs’ total lodestar recovery be reduced to reflect what defendants characterize as plaintiffs’ limited success. In support of this request, defendants make two arguments: first, that the relief obtained by plaintiffs compared to the relief originally sought warrants a downward adjustment, and second, that plaintiffs could have obtained the same relief much earlier in the litigation. A. Whether Plaintiffs Were Successful Defendants first argue that plaintiffs did not achieve a level of success sufficient to justify a full fee award. Courts have recognized that if a plaintiff is successful in civil rights litigation, i.e., if a plaintiff is a prevailing party, “ ‘the degree of the plaintiffs overall success goes to the reasonableness’ of a fee award.” Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Texas State Teachers Ass’n v. Garland Ind. Sch. Dist., 489 U.S. 782, 793, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)). “If ... a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount.... [T]he most critical factor is the degree of success obtained.” Hensley, 461 U.S. at 436, 103 S.Ct. 1933. Defendants contend that plaintiffs only achieved partial success and therefore, should not recover their full fee request. Defendants point out that plaintiffs initially sought ... to take over the entire operation of the child welfare agency — ousting the agency head in favor of a court-appointed receiver to oversee and direct the implementation of all the detailed injunctive relief plaintiffs were hoping to obtain from the court, with the power to restructure the New York City child welfare system. City Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion for Attorneys’ Fees, at 36 (“Def.Br.”). According to defendants, the relief provided for in the City Settlement Agreement is in stark contrast to that which plaintiffs sought by bringing the litigation. The Agreement leaves the" }, { "docid": "16258489", "title": "", "text": "by offering to some teachers, who became eligible for retirement after the plaintiffs, a beneficial option (“Option # 2”) that was not available to the plaintiffs. Id. at 69-70. The plaintiffs’ main objective was to secure an injunction requiring the defendant to make Option # 2 available to them, as well as to those newly qualifying. The district court ruled in the plaintiffs’ favor to the effect that the offer of Option # 2 to the newly qualifying teachers but not to the plaintiffs constituted discrimination in violation of the ADEA. Id. at 70. However, rather than requiring the school board to make Option # 2 available to the plaintiffs, the district court’s injunction allowed the school board to bring itself into compliance with the ADEA by ceasing to offer Option # 2 at all. Id. Turning to the plaintiffs’ fee demand, the district court denied the fee altogether — on the theory that the plaintiffs, having failed to win an injunction that would compel the district to offer them Option # 2, were not the prevailing party. See id. at 78. We reversed, finding that the plaintiffs were a prevailing party. Id. at 79. On the other hand, because the plaintiffs had failed to win an injunction on terms more favorable to them, they had “achieved only partial or limited success.” Id. at 79 (quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933). Because the plaintiffs’ degree of success is “the most critical fac tor,” we authorized the district court to reduce the requested award to account for the limited success. Id. (quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933). Our circuit has thus clearly adopted the view, notwithstanding any potential question as to the scope of Hensley and Farrar, that a district judge’s authority to reduce the fee awarded to a prevailing plaintiff below the lodestar by reason of the plaintiffs “partial or limited suc•cess” is not restricted either to cases of multiple discrete theories or to eases in which the plaintiff won only a nominal or technical victory. Thus, to the extent Kassim contends the district" }, { "docid": "23171994", "title": "", "text": "the trial court has discretion to shrink fees to reflect that inferior result. See Hensley, 461 U.S. at 436, 103 S.Ct. at 1941; Andrade v. Jamestown Hous. Auth., 82 F.3d 1179, 1191 (1st Cir. 1996). Withal, a plaintiff who has limited success from a claim-by-claim standpoint, but who nevertheless obtains substantial compensation or other important relief, usually will fare much better in the fee wars, even though some of her claims failed. See, e.g., Hensley, 461 U.S. at 440, 103 S.Ct. at 1943 (“Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised.”). 3. If a prevailing party is successful on all (or substantially all) of her claims, and receives complete (or near-complete) relief, it goes without saying that reasonable fees should be paid for time productively spent, without any discount for limited success. 4. If a prevailing party succeeds on all (or substantially all) of her claims, but receives no significant relief (e.g., the jury awards only nominal damages), the trial judge sometimes may deny fees altogether because this scenario often “highlights the plaintiff’s failure to prove actual, compensable injury.” Farrar v. Hobby, 506 U.S. 103, 115, 113 S.Ct. 566, 575, 121 L.Ed.2d 494 (1992) (denying fees in a case in which the plaintiff sought $17,000,000 in damages and received $1); see also id. at 114, 113 S.Ct. at 574 (affirming that “the ‘technical’ nature of a nominal damages award or any other judgment ... does bear on the propriety of fees awarded under § 1988”). Farrar, then, signifies that fees need not be bestowed if the plaintiff’s apparent victory is “purely technical or de minimis.” Id. at 117, 113 S.Ct. at 576 (O’Connor, J., concurring). 5. Sometimes, the plaintiff will prevail on all her claims, but will receive limited (though not insubstantial) redress. In such circumstances, it is appropriate for a trial court to consider the skimpiness of the relief when adjusting the lodestar figure. See Rivera, 477 U.S. at 574, 106 S.Ct. at 2694. But" }, { "docid": "8473545", "title": "", "text": "First Amendment right to free speech. The mere fact that plain tiff named several defendants does not argue the contrary. “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee.” Id. at 435, 103 S.Ct. 1933. The results in this case were clearly favorable to plaintiff. The Town’s original zoning ordinance and the amendment thereto were both deemed unconstitutional as a matter of law. Furthermore, plaintiff was awarded compensatory damages in the amount of $4,308. (Damages Tr. at 51.) Accordingly, plaintiff should recover a fully compensatory fee which includes all hours expended on the litigation, and should not be reduced simply because he failed to prevail on every claim. 2. Limited Success Even where the claims are interrelated, if the plaintiff achieved a limited success, the lodestar amount may be considered excessive. Hensley, 461 U.S. at 436, 103 S.Ct. 1933. The focus surrounds the results obtained. See id. The lodestar may be reduced when the plaintiff received only nominal damages in the underlying civil action. See Lilly, 910 F.Supp. at 952 (citing Grant, 973 F.2d at 101; United States Football League v. National Football League, 887 F.2d 408, 411-12 (2d Cir.1989)). The district court has broad discretion in reducing the amount of the award in order to reflect the plaintiffs limited success. See Hensley, 461 U.S. at 436-37, 103 S.Ct. 1933; Farrar, 506 U.S. at 115, 113 S.Ct. 566; Lilly, 910 F.Supp. at 953. However, we conclude that no reduction in fees is warranted in this case. a. Proportionality Defendant argues that the fee award should be decreased because the Court awarded plaintiff only $4,308 in damages. However, there is no proportionality requirement under § 1988; the amount of attorneys’ fees do not have to relate to the amount of damages recovered by plaintiff. See Riverside v. Riviera, 477 U.S. 561, 574-75, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) (“Because damages awards do not reflect fully the public benefit advanced by civil rights litigation, Congress did not intend for fees in civil rights cases, unlike most private law cases, to depend on obtaining substantial monetary" }, { "docid": "17140674", "title": "", "text": "reduced the total fee award by twenty percent for lack of success. See slip op. at 3-5. This appeal followed. Discussion We review a district court’s award of attorney’s fees and costs under Title VII for abuse of discretion. See 42 U.S.C. § 2000e-5(k) (a district court, “in its discretion, may allow the prevailing party ... a reasonable attorney’s fee (including expert fees) as part of the costs”); Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 358 (8th Cir.1997) (“We will tamper with a district court’s award of attorney fees only if there has been an abuse of discretion.”). Where a plaintiff has achieved only limited or partial success, the court must consider in its award “whether the expenditure of counsel’s time was reasonable in relation to the success achieved.” Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (Hensley). Wal-Mart initially argues that the district court’s award of attorney’s fees should be substantially reduced based on Barton’s limited degree of success. WalMart notes that assessment of a fee’s reasonableness includes consideration of “the plaintiffs overall success; the necessity and usefulness of the plaintiffs activity in the particular matter for which fees are requested; and the efficiency with which the plaintiffs attorneys conducted that activity.” Jenkins by Jenkins v. Missouri, 127 F.3d 709, 718 (8th Cir.1997) (Jenkins). Wal-Mart contends that the degree of success is the “most crucial factor” in ascertaining the propriety of the fee award, Brief for Appellant at 1-2 (citing Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (“[T]he most critical factor in determining the reasonableness of a fee award is the degree of success obtained.”)), and that partial success may justify only a partial fee award. See id. at 2-3 (citing Association for Retarded Citizens v. Schafer, 83 F.3d 1008, 1012 (8th Cir.1996), and Gumbhir v. Curators of University of Missouri, 157 F.3d 1141, 1146 (8th Cir.1998) (noting that attorneys “should not be permitted to run up bills that are greatly disproportionate to the ultimate benefits that may be reasonably attainable.”))." }, { "docid": "16122004", "title": "", "text": "818 F.2d 226, 232 (2d Cir.1987). In addition to looking at prevailing marketplace rates, the Court may rely on its own knowledge of comparable rates charged by lawyers in the district. Ramirez v. New York City Off-Track Betting Corp., No. 93 Civ. 0682, 1997 WL 160369, at *2 (S.D.N.Y. Apr.3, 1997). ii. Adjustments Although there is a “strong presumption” that the lodestar figure represents a reasonable fee, City of Burlington v. Hague, 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), “[t]he product of reasonable hours times a reasonable rate does not end the inquiry.” Hensley, 461 U.S. at 434, 103 S.Ct. 1933. Other considerations may lead to an upward or downward departure from the lodestar. Id. “ ‘[T]he most critical factor’ in determining the reasonableness of a fee award ‘is the degree of success obtained.’ ” Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933); N.A.A.C.P. v. Town of East Haven, 259 F.3d 113, 117 (2d Cir.2001). The Supreme Court has reasoned that if a plaintiff achieves only limited or partial success, the lodestar amount may be excessive. Hensley, 461 U.S. at 436, 103 S.Ct. 1933. “This will be true even where the plaintiffs claims were interrelated, nonfrivo-lous, and raised in good faith.” Id. In Farrar, the Supreme Court held that a plaintiff who wins only “nominal damages” is a prevailing party for purposes of a fee award under § 1988, but the Court also held that such a plaintiffs lack of success had to be considered in determining the amount of fees. 506 U.S. at 115, 113 S.Ct. 566. At the same time, however, courts have expressly rejected a per se “proportionality” rule, i.e., proportionally linking the prevailing plaintiffs attorneys’ fees to the degree of monetary success the plaintiff achieved. City of Riverside v. Rivera, 477 U.S. 561, 578, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986). As the Supreme Court has held: A rule of proportionality would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively" }, { "docid": "5777257", "title": "", "text": "King, Inc., 616 F.2d 745, 746 (5th Cir.1980) (proper fee award under Truth in Lending Act “is a matter for the sound discretion of the trial judge”). It should be clear, then, that § 1692k does not mandate a fee award in the lodestar amount. If the concept of discretion is to have any meaning at all, it must encompass the ability to depart from the lodestar in appropriate circumstances. Hensley itself recognized that, in certain circumstances, an award in the lodestar amount may be excessive. When “a plaintiff has achieved only partial or limited success,” the district court, in calculating an appropriate fee award, “may simply reduce the award to account for the limited success.” Hensley, 461 U.S. at 436-37, 103 S.Ct. at 1941. The district court concluded that this case afforded just such a set of circumstances and calculated the fee award accordingly. IV. We next examine whether the court exceeded its discretion in awarding only $500 in fees to appellant Carroll. In making this determination in the context of § 1692k, we look to “the substantial Supreme Court precedent pertaining to the calculation of reasonable attorney’s fees” under the civil rights statutes. Graziano, 950 F.2d at 114. In light of the guidelines announced in Farrar v. Hobby, we find no abuse of the district court’s discretion on these facts. First, appellant received only $50 in statutory damages at the close of the underlying litigation. This award was a mere five percent of the amount of statutory damages she initially sought. In addition, Carroll voluntarily abandoned her claim for actual damages for emotional distress on remand from the Fourth Circuit. The district court in turn determined that a fee award of $500— ten times the amount of statutory damages Carroll ultimately received — was appropriate. See Farrar, — U.S. at -, 113 S.Ct. at 575 (in civil rights action for monetary damages, district court should consider amount of damages awarded as compared to amount sought in determining appropriate fee award). Farrar reiterated the touchstone of an attorney’s fee award first articulated in Hensley: “ ‘the most critical factor’" }, { "docid": "2229898", "title": "", "text": "based on the unsuccessful claims. PL’s Mem. L. at 3-6. Elting further argues that his attorneys should recover a fully compensatory fee because he obtained “excellent results.”\" PL’s Reply Br. at 1 (citing G.B. ex rel. N.B., 894 F.Supp.2d at 425). Elting contends that the proper inquiry is “not whether plaintiff has succeeded on evéry motion or every claim, but whether such action by the attorney was reasonably undertaken.” Id. (citing Gierlinger v. Gleason, 160 F.3d 858, 880 (2d Cir.1998); Marisol A. ex rel. Forbes v. Giuliani, 111 F Supp.2d 381, 393 (S.D.N.Y.2000)). The Second Circuit has “clearly adopted the view ... that a district judge’s authority to reduce the fee awarded to a prevailing plaintiff below the lodestar by reason of the plaintiffs ‘partial or limited success’ is not restricted either to cases of multiple, discrete theories or to cases in which the plaintiff won only a nominal or technical victory.” Kassim v. City of Schenectady, 415 F.3d 246, 256 (2d Cir. 2005), Where a plaintiffs lawsuit was based on a common nucleus of facts, the Second Circuit has “affirmed district court reductions of a lodestar fee by reason of the plaintiffs limited degree of success.” Id. at 255 (discussing Green v. Torres, 361 F.3d 96 (2d Cir.2004); Abrahamson v. Bd. of Educ.; 374 F.3d 66 (2d Cir.2004)). “The district court may attempt to identify specific hours, that should be eliminated, or it may simply reduce the award to account for the limited success.” Hensley, 461 U.S. at 436-37, 103 S.Ct. 1933. In Green v. Torres, a plaintiff sued thé City of New York and five police officers, alleging claims of false arrest and mali cious prosecution. The plaintiff voluntarily dropped certain claims prior to trial, and subsequently, received a judgment in his favor for $50,000 and punitive damages in the amount of $8508. 361 F.3d at 98. The Second Circuit affirmed the district court’s decision to reduce the lodestar by twenty percent because the “plaintiff had pursued inflated claims ... to the eve of trial[,]” and “the only claims that were ever likely to prevail were those against" }, { "docid": "16258490", "title": "", "text": "the prevailing party. See id. at 78. We reversed, finding that the plaintiffs were a prevailing party. Id. at 79. On the other hand, because the plaintiffs had failed to win an injunction on terms more favorable to them, they had “achieved only partial or limited success.” Id. at 79 (quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933). Because the plaintiffs’ degree of success is “the most critical fac tor,” we authorized the district court to reduce the requested award to account for the limited success. Id. (quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933). Our circuit has thus clearly adopted the view, notwithstanding any potential question as to the scope of Hensley and Farrar, that a district judge’s authority to reduce the fee awarded to a prevailing plaintiff below the lodestar by reason of the plaintiffs “partial or limited suc•cess” is not restricted either to cases of multiple discrete theories or to eases in which the plaintiff won only a nominal or technical victory. Thus, to the extent Kassim contends the district court lacked authority to reduce his attorney’s fee by reason of his limited success, his appeal fails. We find ourselves unable, however, either to affirm or vacate the district court’s fee award, because we cannot tell from the court’s explanation whether it was based on permissible or impermissible considerations. As noted, the court’s reference to taking account of the “final result” was ambiguous. In addition, we cannot tell from the court’s explanation to what extent, if at all, the fee was reduced by reason of the “final result.” While a district court exercises broad discretion in setting the amount of a fee award, it is “important ... for the district court to provide a concise but clear explanation of its reasons,” especially with regard to the grant or denial of an adjustment to lodestar based on degree of success. See Hensley, 461 U.S. at 437, 103 S.Ct. 1933. We vacate the fee award and remand for clarification (1) whether in fact the fee awarded was reduced bé-low reasonable lodestar by use of the “final result,”" }, { "docid": "3852191", "title": "", "text": "461 U.S. at 435, 438-4, 103 S.Ct. 1933); see also, e.g., id. (“Hensley makes clear that where multiple claims are interrelated and a plaintiff has achieved only limited success, awarding her the entire lodestar amount would ordinarily be excessive.” (citing Hensley, 461 U.S. at 436, 103 S.Ct. 1933)). The First Circuit considers, in combination, three “meanings” of the term “results obtained”: “a plaintiffs success claim by claim,” “the relief actually achieved,” and “the societal importance of the right which has been vindicated.” Coutin, 124 F.3d at 338. The Court briefly discusses each meaning and then applies them, together, to this case. A. Clainv-by-Claim Success .This approach focuses on the number of substantive causes of action on which a plaintiff prevailed. See id. at 340. “If a plaintiff prevails .on only some of multiple claims, then a fee reduction may be in order.” Id. at 339. In contrast, when plaintiffs have “prevailed up and down the line” on their claims, “a claims-based, results-obtained fee reduction is wholly inappropriate.” Id. at 340; see also Rodriguez-Hemandez, 132 F.3d at 859 (citing Coutin). In making this determination, the trial court considers all of the related claims — that is, claims based “on a common core, of facts and on related legal theories” — both successful and unsuccess ful. Id. (citing Hensley, 461 U.S. at 435, 103 S.Ct. 1933); see also Coutin, 124 F.3d at 339 (outlining an approach that first weeds out unsuccessful, unrelated claims as not compensable and then proceeds to analyze the degree of success on the interrelated claims). B. Relief Actually Achieved The second meaning of “results obtained” focuses on the damages awarded to the plaintiff. See id. at 340. The trial court has the “discretion to reduce a fee award in response to limited relief even in the presence of complete claims-based success.” Id. (citing Cartwright v. Stamper, 7 F.3d 106, 109-10 (7th Cir.1993)). However, a plaintiff “should receive significant fees when he has won a partial victory on a civil rights claim while receiving substantially the relief he there sought_” Aubin v. Fudala, 782 F.2d 287, 291 (1st Cir.1986);" } ]

[ { "docid": "22723175", "title": "", "text": "to the realities of tax avoidance schemes. Respondent urges further that the Tax Court erroneously concluded that the gift was ineffective for tax purposes because it was conditional and therefore incomplete. The Government defends the Tax Court’s conclusion. We do not find it necessary to decide this issue. The question here is not simply who actually owned a share of the capital attributed to the wife on the partnership books. A person may be taxed on profits earned from property, where he neither owns nor controls it. Lucas v. Earl, supra The issue is who earned the income and that issue depends on whether this husband and wife really intended to carry on business as a partnership. Those issues cannot be decided simply by looking at a single step in a complicated transaction. To decide who worked for, otherwise created or controlled the income, all steps in the process of earning the profits must be taken into consideration. See Commissioner v. Court Holding Co., 324 U. S. 331, 334. Of course, the question of legal ownership of the capital purportedly contributed by a wife will frequently throw light on the broader question of whether an alleged partnership is real or pretended. But here the Tax Court’s findings were supported by a sufficient number of other factors in the transaction, so that we need not decide whether its holding as to the completeness of the gift was correct. Cf. Helvering v. Hallock, 309 U. S. 106, 117, 118; Burnet v. Wells, 289 U. S. 670, 677. There can be no question that a wife and a husband may, under certain circumstances, become partners for tax, as for other, purposes. If she either invests capital originating with her or substantially contributes to the control and management of the business, or otherwise performs vital additional services, or does all of these things she may be a partner as contemplated by 26 U. S. C. §§ 181,182. The Tax Court has recognized that under such circumstances the income belongs to the wife. A wife may become a general or a limited partner with her" } ]

[ { "docid": "5360925", "title": "", "text": "or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case, but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” 337 U.S. at page 742, 69 S.Ct. at page 1214, 93 L.Ed. 1659. A business partnership is a contractual relation at all times, not a mere afterthought for tax purposes. It is true in this case that the wife of plaintiff did contribute $691.61 to the original purchase price of the store in Rapid City, South Dakota, but she did not pretend at that time to be a partner in the business. That was a contribution to her husband to enable him to enter into a partnership with his brothers to purchase the store. That amount and much more was given to her by her husband after he became prosperous. It is not claimed that she was a member of the partnership of Baron Brothers from 1936 to 1940. It is true, also, that plaintiff’s wife worked in the store, and that she was competent and useful; but she was paid a fair salary for her work, whereas her husband received no salary. It is also true that prior to the making of the claim for refund at the institution of these proceedings the plaintiff never contended or asserted that a partnership existed. The claims made by him relating to the business were all inconsistent with the existence of a partnership. Not only were the books, the business records, kept in his name alone; but he, also, took solemn oaths to the effect that he was the individual owner of that business. Although they made partnership" }, { "docid": "11986855", "title": "", "text": "there was a contribution of original capital by the wife-or the contribution by her of vital services. As Judge Simons pointed out in Lawton et al. v. Commissioner, 6 Cir., 164 F.2d 380, a family partnership for income tax purposes is to be judged in the light of partnerships in general, according to the definition given in Ward v. Thompson, 22 How. 330, 16 L.Ed. 249: “A partnership is generally said to be created when persons join together their money, goods, labor or skill for the purposes of carrying on a trade, profession, or business, and when there is a community of interest in the profits and losses.” In the Lawton case, and in Kent v. Commissioner, 6 Cir., 170 F.2d 131, this court reversed decisions of the Tax Court and upheld the validity of family partnerships for income tax purposes, although, in those cases, the wife’s capital contribution to the partnership was received as a gift from the husband. This was in keeping with what the Supreme Court said in the tower case, to the effect that there was no reason why the general concept of a partnership that rules in ordinary commercial-law cases “should not apply in tax cases where the government challenges the existence of a partnership for tax purposes.” Commissioner v. Tower, 327 U.S. 280, 287, 66 S.Ct. 532, 536, 90 L.Ed. 670, 164 A.L.R. 1135. The same view was also emphasized by Mr. Justice Frankfurter, in his concurring opinion in the Culbertson case, where he observed that the test of a valid family partnership for tax ■purposes should be the same as the test for any partnership regardless of the involvement of income tax, namely, that the controlling consideration is whether the parties intend to join in a business venture. Accordingly, there seems to be no reason why a husband’s irrevocable gift to his wife of a partnership interests should not make her a partner even though she contributes no services. The determining question is whether the husband and wife really intend to carry on the business as copartners, Wenig v. Commissioner, D. C. Cir.," }, { "docid": "5440403", "title": "", "text": "of an undivided 15 per cent interest in all the assets of the enterprise to each of their three children. It was testified this was done in order to- set up a partnership which included the children. The parents also made other, more valuable gifts to the children, consisting of property not connected with the business. Thereafter the children voluntarily contributed these other properties to the partnership capital. The Commissioner recognized the validity of the partnership as to these other assets, and the court held that “if the partnership was valid as to these other assets, it should be valid .as to all assets”. We find no fault with this conclusion. But that situation, arising from the Commissioner’s concession, does not exist here. Furthermore, the court there, in reversing, by a divided court, the judgment of a district court said: “There was no finding by the court below that they did not in good faith intend to join together as partners.” The other case thus cited is Ardolina v. Commissioner, 3 Cir., 186 F.2d 176. In that case the family partnership questioned had been created by the husband taking his wife into his business. Some years previously the husband had been started in this business by his wife who contributed $500 which she had saved from part time work of various kinds at a time when the husband had been able to save nothing. There were cogent and persuasive reasons why the husband wanted his wife presently in the business, including his desire to have her know the business so she could carry it on and be independent if he should die. Again, at the time the wife was given the share in the business, and the partnership agreement made, the husband had just finished buying out his former partner, and the new partnership, with the wife, conformed in every detail to the terms of the old one. We think the facts of that case quite dissimilar to those now before us. For the reasons, and upon the grounds stated in the opinion of the Tax Court, its decisions in" }, { "docid": "11986856", "title": "", "text": "the effect that there was no reason why the general concept of a partnership that rules in ordinary commercial-law cases “should not apply in tax cases where the government challenges the existence of a partnership for tax purposes.” Commissioner v. Tower, 327 U.S. 280, 287, 66 S.Ct. 532, 536, 90 L.Ed. 670, 164 A.L.R. 1135. The same view was also emphasized by Mr. Justice Frankfurter, in his concurring opinion in the Culbertson case, where he observed that the test of a valid family partnership for tax ■purposes should be the same as the test for any partnership regardless of the involvement of income tax, namely, that the controlling consideration is whether the parties intend to join in a business venture. Accordingly, there seems to be no reason why a husband’s irrevocable gift to his wife of a partnership interests should not make her a partner even though she contributes no services. The determining question is whether the husband and wife really intend to carry on the business as copartners, Wenig v. Commissioner, D. C. Cir., 177 F.2d 62; Greenberger v. Commissioner, 7 Cir., 177 F.2d 990; Ginsburg v. Arnold, 5 Cir., 176 F.2d 879. See also the recent decisions of the Tax Court since the decision in the Culbertson case. O. H. Delchamps, 13 T. C. 281; Edward A. Theurkauf, 13 T. C. 529. We find the evidence to be clear and convincing that the Millers, even before their marriage, were working together in the drug business; that Mrs. Miller at all times contributed substantial, valuable, and vital services; that her husband gave •her a half interest in the business because of her services and because he felt that she was entitled to it; and that this half interest constituted her share of the business, which the parties intended, in good faith, to carry on, as partners, and did carry on as a valid partnership. Lawton et al. v. Commissioner, supra; Weizer v. Commissioner, 6 Cir., 165 F.2d 772; Kent v. Commissioner, supra; Henson v. Commissioner, 5 Cir., 174 F. 2d 846. There is no substantial evidence to support a" }, { "docid": "12021791", "title": "", "text": "on an average of twice weekly. As to the business property, she suggested that it be constructed for a restaurant on the ground floor. She objected to the possible use of the second floor, and the possible tenancy was altered accordingly. From the foregoing analysis of the trust instruments, of the circumstances surrounding their creation, and of the operation under them, it is clear that these trusts were and are valid entities for income tax purposes. The Partnership. Practically the entire emphasis of respondent here is placed upon the partnership situation. Both the Tax Court and counsel for respondent treat the partnership as being a “family” partnership and subject to the sharp scrutiny such a partnership invites in income tax matters. The legal básís of the Tax Court determination is the tests (as construed by the Tax Court) of the cases of Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670, 164 A.L.R. 1135 and Lusthaus v. Commissioner, 327 U.S. 293, 66 S.Ct. 539, 90 L.Ed. 679 in considering family partnerships. Removing the undue “emphasis” placed upon the test as set out in these two cases, Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 742, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659 stated the rule to be “whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” While this rule. was announced in a “family” partnership case, yet it equally is applicable to partnership cases in general. It is the test here where the partnership is not a family partnership. The determinative inquiry is as to the good faith intent of the parties to combine for a business purpose. The creation" }, { "docid": "16555420", "title": "", "text": "in execution of its provisions.’ ” Commissioner v. Tower, 327 U.S. 280. Tn Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659, the Supreme Court gave further consideration to the family partnership problem and gave added emphasis to the thought that the intent of the parties is of very great if, indeed, not controlling importance. In the course of that opinion it is said: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case, but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise. There is nothing new or particularly difficult about such a test. Triers of fact are constantly called upon to determine the intent with which a persoii acted.” In the instant case the Tax Court found as a fact from all the evidence and attending circumstances that “the petitioner and his wife did not form, or intend to form, a bona fide partnership to operate a news agency prior to or during 1943 and 1944.” The income here involved resulted from operating the news agency. The income arising from rentals of the Carberry Apartments was reported by petitioner’s wife. In the course of the Tax Court’s opinion it is observed that, “According to the evidence, the petitioner operated the news agency as his own individual business. His wife did render valuable assistance to him in the earlier years from about 1906 to 1924, but she has taken no active part in the business since that time. No partnership, agreement, was ever entered into and proof is lacking even of" }, { "docid": "22728503", "title": "", "text": "federal law is controlling. Even if it were, we are pointed to no federal law of partnership which precludes the wife’s becoming a partner with her husband and making her contribution to capital from money or property given to her by her husband, as well as from any other source The Court’s opinion does not hold that income of husband and wife must be taxed as one. Congress has refused to do this although urged to do so.* It does not hold that a wife may not be a partner of her husband under some circumstances. It is said she may be “If she either invests capital originating with her or substantially contributes to the control and management of the business, or otherwise performs vital additional services, or does all of these things . . . 26 U. S. C. §§ 181, 182.” Commissioner v. Tower, ante, p. 290. But as we read the Court’s opinion, it decides that a wife may not become a partner of her husband for federal income tax purposes, if the husband gives to her, directly or indirectly, the capital to finance her part of the partnership investment unless she also substantially participates in the management of the business or otherwise performs vital additional services. This conclusion we think is erroneous. There is no provision or principle of the Internal Revenue laws which prevents a husband from making a gift of property to his wife, even though his motive is to reduce his taxes, or which requires the income thereafter to be taxed to the husband if the gift is genuine and not pretended and he has retained no power to deprive the wife of the property or its income. We have pointed out that the amount of earnings to be allocated to petitioner’s managerial abilities is not in issue. There is no question but that the gift of $50,000 was complete, either in itself or joined with the subsequent transfer of a half interest in the partnership assets by payment of that $50,000 plus the additional cash and notes. On termination of the partnership," }, { "docid": "7126094", "title": "", "text": "do for them whatever was necessary in connection with the firm business. But the principles and concepts which the courts must apply in the application of the federal income tax law are not governed by State criteria. United States v. Kintner, 9 Cir., 216 F.2d 418, 424; Commissioner of Internal Revenue v. Linde, 9 Cir., 213 F.2d 1, 7. The question here is whether there was in truth and in reality the sale of a capital asset within the meaning of the federal tax laws. What the Tax Court has held is, in short, that there was really a dissolution of a partnership under the guise of a sale. In the Hatch case, supra, this court, while holding the proviso contained in the General Counsel’s Memorandum, above referred to, not applicable to the facts in that case, nevertheless stated that “we agree with the statement of the Commissioner”. That proviso and the holding of the Tax Court here, are but an application of the principle that the incidence of taxation depends upon the substance and not the form of a transaction. Thus in the determination of whether a partnership exists for tax purposes, the question is whether “the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 742, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659. An assignment by a husband to his wife of salary and fees to be earned by him, though valid in the State of California, does not serve to prevent the whole of the salary and fees from being taxed as income to the husband, for tax consequences cannot be attached to any “arrangement by which the fruits are attributed to a different tree from that on which they grew.” Lucas v. Earl, 281 U.S. 111, 115, 50 S.Ct. 241, 74 L.Ed. 731. Where the grantor of a trust remains in substance the owner of the trust corpus the income of the trust is taxable to him. Helvering v. Clifford, 309 U.S. 331, 60 S.Ct." }, { "docid": "11876870", "title": "", "text": "of the District Court’s judgment with instructions to enter judgment in his favor. The crux of the Collector’s argument is that the taxpayer failed to sustain the burden of establishing, in accordance with Commissioner of Internal Revenue v. Culbertson, 1949, 337 U.S. 733, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659, that “the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” The evidence in the instant case, says the Collector, establishes there was no change in the real economic position of the taxpayer; he retained control over the business; there was a mere paper reallocation of income among an intimate family group and the income itself was devoted to purposes which satisfied taxpayer’s natural desires. Lusthaus v. Commissioner, 1946, 327 U.S. 293, 66 S.Ct. 539, 90 L.Ed. 679; Helvering v. Clifford, 1940, 309 U.S. 331, 334, 60 S.Ct. 554, 84 L.Ed. 788; Commissioner of Internal Revenue v. Tower, 1946, 327 U.S. 280, 290-291, 66 S.Ct. 532, 90 L.Ed. 670, 164 A.L.R. 1135. In reply, the taxpayer urges that the District Judge, without objection by either side, submitted two questions to the jury which thereupon found that (1) the gifts to the wife and daughters were not conditioned upon their putting the money back in the business and (2) all the parties truly intended to join together for the purpose of presently carrying on the business and sharing in its profits. He asserts that under Commissioner v. Culbertson, supra, the question as to whether there was a “real” partnership is a question of fact; the evidence justified the jury’s factual determination that the partnership in the instant case was “real”, and that in any event we cannot and should not substitute our own conclusions or inferences for those of the traditional trier of facts. Additionally, taxpayer says, we cannot set aside the judgment as sought by the Collector since he failed to move for judgment under Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and the only question raised on appeal is the correctness of the" }, { "docid": "11473301", "title": "", "text": "senior Maloney after the partnership agreement was drawn up as it was before. That issue was the one to which the court’s instruction was directed. Read with that in mind there was nothing misleading about it even though one may raise a question as to a particular word when the paragraph is lifted out of its context and removed from the background of this case. A third objection made by the taxpayer has to do with motive. The judge charged: “In order to prevail, the plaintiff must establish to your satisfaction that this was a bona fide partnership for the purpose of jointly carrying on the business because of the contributions of capital and services by the partners and that it was not primarily established for tax avoidance or tax reduction purposes as a means of channeling the taxpayer’s income to the members of his family without paying their taxes, the plaintiff would ordinarily have to pay on it.” We think the objection is answered by an excerpt from the court’s opinion in Commissioner of Internal Revenue v. Culbertson, 1949, 337 U.S. 733, 742, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case [Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670], but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise. * * *\" The trial judge had, we think, pretty evidently read the Culbertson case before he gave his instructions here. We think also that he had looked at our opinion in Lamb" }, { "docid": "11473302", "title": "", "text": "Internal Revenue v. Culbertson, 1949, 337 U.S. 733, 742, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case [Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670], but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise. * * *\" The trial judge had, we think, pretty evidently read the Culbertson case before he gave his instructions here. We think also that he had looked at our opinion in Lamb v. Smith, 3 Cir., 1950,183 F.2d 938. In the latter case the situation was not unlike this one, where the taxpayer had paid his assessment and sought to get it back through the district court rather than trying to fight out his dispute before the tax court. The requirement that good faith is an essential part of the formation of such a family partnership runs all through the Culbertson opinion and the paragraph of the instruction complained of, even when torn out of context, puts to the jury the determination of the question of fact, described by the Supreme Court. Aside from the instructions the taxpayer alleges other errors in the course of the trial. One of these has to do with a difference of opinion which the trial judge had with Mrs. Maloney when she was on the witness stand. The taxpayer had granted to Mrs. Maloney and Maloney, Jr., undivided interests in the real estate upon which the tanning business owned by Maloney, Sr., and transferred to the partnership was carried on. Mrs." }, { "docid": "11986840", "title": "", "text": "by petitioner and his wife for their minor children were not partnership interests; and' that petitioner did not establish a loss on his claim for a deduction. The Tax Court further found that the trusts established by petitioner’s father for the children resulted in valid partnership interests. From the decision of the Tax Court, petitioner appealed. . We come, then, to the principal issue: whether, for income tax purposes, all of the income o'f Miller’s Gut Rate Drugs was, under the circumstances disclosed, properly taxable to the husband alone, or whether it was to be divided between the husband and his wife. Petitioner contends that his wife, Florence R. Miller, invested her independent capital in the business; that she contributed substantially to the management and control of the business; that she performed other vital services; and that the arrangement met the requirements of a valid family partnership. At the outset of its opinion, the Tax Court quoted from the opinion of the Supreme Court in Commissioner v. Tower, 327 U.S. 280, 66 S.Ct. 532, 537, 90 L.Ed. 670, 164 A.L.R. 1135, as follows; “There can be no question that a wife and a husband may, under certain circumstances, become partners for tax, as for other, purposes. If she either invests capital originating with her or substantially contributes to the control and management of the business, or otherwise performs vital additional services, or does all of these things she may be a partner as contemplated by 26 U.S.C. §§ 181, 182, 26 U.S.C.A. Int.Rev.Code §§ 181, 182. * * * But when she does not share in the management and control of the business, contributes no vital additional service, and where the husband purports in some way to have given her a partnership interest, the Tax Court may properly take these circumstances into consideration in determining whether the partnership is real within the meaning O'f the federal revenue laws.” The latest pronouncement of the Supreme Court on the subject of partnerships under the income tax law is found in Commissioner v. Culbertson, 337 U.S. 733, 69 S.Ct, 1210, 1212, 93 L.Ed." }, { "docid": "11986853", "title": "", "text": "that she made no contribution of services of sufficient importance to constitute her a partner in the business. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Consolidated Edison Co. et al. v. National Labor Relations Board, et al., 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126. It was, however, not upon substantial evidence of the intention of the parties that the case was decided, but on the basis -of certain “tests.” From a consideration of the opinion of the Tax Court, it appears that, as in the Culbertson case, it treated as essential to membership in a family partnership for tax purposes, the contribution of either “vital services” or “original capital.” This made decisive what the Supreme Court described only as “circumstances” to be taken into consideration. Such seems to be the purport of the Tax Court’s statement that “The funds which the petitioner’9 wife claims to have contributed to the business all originated with her husband either as direct gifts 'from him or as diversions of income from the business.” The Tax Court continued: “There is no evidence that she invested in the business at any time any capital originating with her. • Transfers to the wife of a partial interest in the husband’s business are not investments of new capital. Commissioner v. Tower, supra, and Lusthaus v. Commissioner, 327 U.S. 293, 66 S.Ct. 539, 90 L.Ed. 679. ****** “His wife’s contributions of ideas and services, while undoubtedly of some value to the business, were not of the nature or of sufficient importance to constitute her a partner in the business.” Throughout the opinion, emphasis is placed upon these “tests.” Nowhere is found any conclusion as to whether or not the Millers, in good faith and acting with a business purpose, intended to join together in the conduct of the enterprise — the true test of a valid family partnership. It seems clear that the decision of the Tax Court was based upon the assumption that there could be no valid family partnership for income tax purposes unless" }, { "docid": "13825776", "title": "", "text": "of the business.” It was held in the Tower case that the question of whether “the partners really and truly intended to join together for the purpose of carrying on business and sharing in the profits or losses or both” is a “question of fact, to be determined from testimony disclosed by their ‘agreement, considered as a whole, and by their conduct in execution of its provisions’ ”, citing Drennen v. London Assurance Corp., 113 U.S. 51, 56, 5 S.Ct. 341, 28 L.Ed. 919, 921. If that test is to be applied to this case, as undoubtedly it must be, and if due consideration is to be given to the plain provisions of the 1940 partnership agreement and its background, and to the clearly established conduct of the partners “in execution of its provisions”, the inevitable conclusion must be that the 1940 partnership was valid, binding and subsisting as to all three partners during the year 1940. The intention of the partners in this case to become partners in the conduct of a lawful business is as plain as written words and the conduct of the partners can make it. It is a misinterpretation of the Tower case to say that it holds that a husband and wife cannot become partners for tax purposes. Quite to the contrary, the Court held: “There can be no question that a wife and a husband may, under certain circumstances, become partners for tax, as for other, purposes. If she either invests capital originating with her or substantially contributes to the control and management of the business, or otherwise performs vital additional services, * * * she may be a partner as contemplated by * * * 26 U.S.C.A. Int.Rev.Code, §§ 181, 182.” By the phrase “capital originating with her”, the Court undoubtedly meant money or other asset which the wife owned in her own right, regardless of how she may have acquired it. It would be unreasonable to interpret the quoted words as meaning that a wife could not invest money or property which she lawfully acquired by way of gift, inheritance or" }, { "docid": "5440404", "title": "", "text": "In that case the family partnership questioned had been created by the husband taking his wife into his business. Some years previously the husband had been started in this business by his wife who contributed $500 which she had saved from part time work of various kinds at a time when the husband had been able to save nothing. There were cogent and persuasive reasons why the husband wanted his wife presently in the business, including his desire to have her know the business so she could carry it on and be independent if he should die. Again, at the time the wife was given the share in the business, and the partnership agreement made, the husband had just finished buying out his former partner, and the new partnership, with the wife, conformed in every detail to the terms of the old one. We think the facts of that case quite dissimilar to those now before us. For the reasons, and upon the grounds stated in the opinion of the Tax Court, its decisions in these cases are affirmed. . Quoted in Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 741, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659, from Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 287, 66 S.Ct. 532, 90 L.Ed. 670. . “The fact that transfers to members of the family group may be mere camouflage does not, however, mean that they invariably are. The Tower case recognized that one’s participation in control and management of the business is a circumstance indicating an intent to be a bona fide partner despite the fact that the capital contributed originated elsewhere in the family. If the donee of property who then invests it in the family partnership exercises dominion and control over that property — and through that control influences the conduct of the partnership and the disposition of its income — he may well be a true partner.” 337 U.S. at page 747, 69 S.Ct. at page 1216. . The passages are as follows: “Unquestionably a court’s determination that the services contributed by a partner are" }, { "docid": "5440396", "title": "", "text": "the Army and became assistant general manager of the business, and continued thereafter to perform substantial managerial services. In 1946 and 1947 he received a salary for such services, exceeding $50,000 in each year, in addition to some further withdrawals from the business income. Colgate left the Army in the fall of 1944, and immediately went to work for the enterprise. In January, 1945, Colgate was named a fifth partner, and since then has been manager of one branch of the business. For his services he drew compensation ranging from $450 in 1944 to $46,554 in 1946. From 1944 to 1947, inclusive, Colgate and his wife made other miscellaneous withdrawals of $11,830. Petitioners say that here, where the question is “whether the partners really and truly intended to join together for the purpose of carrying on the business and sharing in the profits and losses or both”, what the son, the daughter, and the daughter’s husband did after the men were discharged from the Army has an important bearing on their prior intent. It is argued that these subsequent happenings are important in determining the issue of good faith, and that the Tax Court, in making no mention of them, has failed to consider all of the facts. ' Another principal contention made is that the Tax Court determined that there was no valid partnership within the meaning of the tax laws simply because it said the children did not contribute “original capital” or “vital services”. Such a deter* mination, it is said, disregards the explicit statement in the Culbertson case, 337 U.S. at page 742, 69 S.Ct. at page 1214: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case, but whether, considering all the facts * * * the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” This, say petitioners, requires a subjective test, which the Tax Court refused to apply. The petitioners again say that the" }, { "docid": "18040538", "title": "", "text": "the present conduct of the enterprise.” This pronouncement reads as though it might have been written with the facts of the instant case in mind. The court in the Culbertson case left no doubt that the predominant factor is the good faith and legitimate purpose of the parties in forming a partnership. The court said, 337 U.S. at page 743, 69 S.Ct. at page 1215: “But the Tax Court did not view the question as one concerning the bona fide intent of the parties to join together as partners.” And on the following page, the court again emphasized t'he element of good faith by stating: “If, upon a consideration of all the facts, it is found that the partners joined together in good faith to conduct a business, having agreed that the services or capital to be contributed presently by each is of such value to the partnership that the contributor ■should participate in the distribution of profits, that is sufficient. The Tower case did not purport to authorize the Tax Court to substitute its judgment for that of the parties; it simply furnished some guides to the determination of their true intent.” •Another contention closely tied in with the lack of capital as an income producing factor is that petitioner by the rendition of personal service was responsible for production of the income. It is true the court in Tower stated, 327 U.S. at page 289, 66 S.Ct. at page 537, “The issue is who earned the income,” but the court also stated, “that issue depends on whether this husband and wife really intended to carry on business as a partnership.” If the partnership in the instant case was bona fide, as we think it was, the income earned was that of the partnership and not that of petitioner. While petitioner undoubtedly was the predominating force in the conduct and management of the business, the Commissioner overlooks the fact that the partnership paid him a salary of $45,000 per annum during each of the taxable years for his services thus rendered. In this connection, it is pertinent to note" }, { "docid": "11986841", "title": "", "text": "90 L.Ed. 670, 164 A.L.R. 1135, as follows; “There can be no question that a wife and a husband may, under certain circumstances, become partners for tax, as for other, purposes. If she either invests capital originating with her or substantially contributes to the control and management of the business, or otherwise performs vital additional services, or does all of these things she may be a partner as contemplated by 26 U.S.C. §§ 181, 182, 26 U.S.C.A. Int.Rev.Code §§ 181, 182. * * * But when she does not share in the management and control of the business, contributes no vital additional service, and where the husband purports in some way to have given her a partnership interest, the Tax Court may properly take these circumstances into consideration in determining whether the partnership is real within the meaning O'f the federal revenue laws.” The latest pronouncement of the Supreme Court on the subject of partnerships under the income tax law is found in Commissioner v. Culbertson, 337 U.S. 733, 69 S.Ct, 1210, 1212, 93 L.Ed. 1659, which was decided subsequent to the decision of the Tax Court in the instant case. In the Culbertson case, the Supreme Court, in reversing a decision of the Tax Court on a question of a family partnership under the income tax law, observed that “The Tax Court read our decisions in Commissioner v. Tower, supra, and Lusthaus v. Commissioner, [327 U.S. 293, 66 S.Ct. 539, 90 L.Ed. 679], supra, as setting out two essential tests of partnership for income-tax purposes: that each partner contribute to the partnership either vital services or capital originating with him. * * * It treated as essential to membership in a family partnership 'for tax purposes the contribution of either ‘vital services’ or ‘original capital.’ Use of these ‘tests’ of partnership indicates, at best, an error in emphasis. It ignores what we said is the ultimate question for decision, namely, ‘whether the partnership is real within the meaning of the federal revenue laws’ and makes decisive what we described as ‘circumstances (to be taken) into consideration’ in making that" }, { "docid": "13640213", "title": "", "text": "a family partnership is real for income tax purposes depends upon “whether the partners really and truly intended to join together for the purpose of carrying on the business and sharing in the profits and losses or both. And their intention in this respect is a question of fact.” Commissioner v. Culbertson, 337 U. S. 733. In the Culbertson case the Court also said: The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case, but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent— the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise. * * * The gist of the respondent’s argument is that the alleged partnership was invalid because the new partners performed no important and necessary services, and skill, know-how, and contacts were important to the partnership’s success. However, capital was a material, important, and necessary element for success in the Forcum-James contracting business. Without adequate capital there could have been no profits. The testimony shows that this was a hazardous business involving large risks and considerable amounts of money. The fact that capital contributions were gifts is not controlling, if the gifts were absolute and unconditional as they were here. Commissioner v. Culbertson, supra. The new partners risked their capital gifts and their entire separate estates by becoming partners. Moreover, the petitioners did not benefit from nor retain dominion or control of the new partners’ investments or income in the partnership. The original partners and the new partners entered into the partnership agreement with bona fide intent and a business purpose of risking their capital in this partnership. We hold that the partner ship in question" }, { "docid": "5360924", "title": "", "text": "it has been said, of clarifying the rules there stated the Supreme Court discussed and restated them at length in Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 69 S.Ct. 1210, 93 L.Ed. 1659. In the Tower case the Court said that the question whether the family partnership is real for income tax purposes depends upon “whether the partners really and truly intended to join together for the purpose of carrying on business and sharing in the profits or losses or both. And their intention in this respect is a question of fact, to be determined from testimony disclosed by their ‘agreement, considered as a whole, and by their conduct in execution of its provisions. (Citations.) We see no reason why this general rule should not apply in tax cases where the government challenges the existence of a partnership for tax purposes.” 327 U.S. at page 287, 66 S.Ct. at page 536, 90 L.Ed. 670. In the Culbertson case the rule so stated was “clarified” as follows: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case, but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” 337 U.S. at page 742, 69 S.Ct. at page 1214, 93 L.Ed. 1659. A business partnership is a contractual relation at all times, not a mere afterthought for tax purposes. It is true in this case that the wife of plaintiff did contribute $691.61 to the original purchase price of the store in Rapid City, South Dakota, but she did not pretend at that time to be a partner in the" } ]

[ { "docid": "9457088", "title": "", "text": "F.3d 959, 961 (7th Cir.2000). Mr. Booker correctly asserts that a defendant should not be denied a reduction for acceptance of responsibility when he only challenges the legal conclusion that should be drawn from facts that he has admitted. See United States v. Purchess, 107 F.3d 1261, 1266 (7th Cir.1997). However, a defendant also must admit, or not falsely deny or frivolously contest, any relevant conduct as it relates to the offense of conviction to be eligible for an acceptance-of-responsibility reduction. See U.S.S.G. § 3E1.1, cmt. n. 1(a); see also United States v. Sierra, 188 F.3d 798, 804 (7th Cir.1999). Although the Sentencing Guidelines do not require the defendant affirmatively to volunteer information about his relevant conduct, see U.S.S.G. § 3E1.1, cmt. n. 1(a), “[i]f a defendant denies relevant conduct and the court determines such conduct occurred, the defendant cannot claim to have accepted responsibility for his actions,” United States v. Brown, 47 F.3d 198, 204 (7th Cir.1995). See also Sierra, 188 F.3d at 804 (“A defendant does not accept responsibility when he denies committing criminal actions and relevant conduct which the district court attributes to him.”). Mr. Booker has done many of the things the courts and the Guidelines expect a defendant to do in order to demonstrate that he accepts responsibility for his illegal conduct. See U.S.S.G. § 3E1.1, cmt. n. 1 (explaining that, in determining whether to grant an acceptance-of-responsibility reduction, the sentencing court should consider, inter alia, whether the defendant truthfully admitted the conduct comprising the offense of conviction, whether he provided voluntary assistance to the authorities, and whether he manifested his acceptance of responsibility in a timely manner). Indeed, Mr. Booker’s cooperation with the Government makes this issue a closer, and more sympathetic, one than it otherwise might have been. However, the timely entry of a guilty plea is not necessarily sufficient to warrant an acceptance-of-responsibility reduction. See id. at cmt. n. 3 (“A defendant who enters a guilty plea is not entitled to an adjustment [for acceptance of responsibility] as a matter of right.”). Instead, the defendant must demonstrate to the district court’s satisfaction" } ]

[ { "docid": "10767393", "title": "", "text": "when it sentenced Ms. Jaynes. F. Acceptance of Responsibility Finally, Ms. Jaynes argues that the district court erred by failing to reduce her offense level under the sentencing guidelines by two levels for acceptance of responsibility, under section 3E1.1 of the guidelines. The defendant has the burden of proving she is entitled to a reduction under section 3E1.1. United States v. Nelson, 54 F.3d 1540, 1544 (10th Cir.1995). A district court has broad discretion to grant or deny a reduction for acceptance of responsibility. We will not reverse the district court’s decision unless it is clearly erroneous. See United States v. Robertson, 45 F.3d 1423, 1449 (10th Cir.), cert. denied, — U.S. -&-, — U.S. -, 115 S.Ct. 2258 & 2259, 116 S.Ct. 133, 132 L.Ed.2d 265, 133 L.Ed.2d 81 (1995). See also Guidelines § 3E1.1 commentary, n. 5 (“the determination of the sentencing judge is entitled to great deference on review”). In determining whether a defendant has clearly demonstrated acceptance of responsibility for his offense under section 3E1.1, the court must consider, among other things, whether the defendant has truthfully admitted “the conduct comprising the of~ fense(s) of conviction.” See Guidelines § 3E1.1 commentary, n. 1(a). The adjustment “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” Id. n. 2. Although Ms. Jaynes admitted the conduct constituting the forgeries, she steadfastly denied any intent to defraud the government — an essential factual element of guilt. She thus “did not admit to committing those crimes.” Nelson, 54 F.3d at 1545. Where a defendant admits his conduct but claims “he did nothing illegal and had no unlawful intention,” thereby putting the government to its proof, his denial is inconsistent with an acceptance of responsibility. United States v. McCollom, 12 F.3d 968, 973 (10th Cir.1993). See also Nelson, 54 F.3d at 1545. We cannot say the district court clearly erred in denying Ms. Jaynes a reduction in her offense level for acceptance of responsibility." }, { "docid": "1642728", "title": "", "text": "for his criminal conduct.” U.S.S.G. § 3El.l(a) (emphasis added). It continues that a “defendant may be given consideration under this section without regard to whether his conviction is based upon a guilty plea or a finding of guilt by the court or jury or the practical certainty of conviction at trial,” id. at § 3El.l(b) (emphasis added), and that a “defendant who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right,” id. at § 3El.l(e). Although the commentary, in providing a nonexhaustive list of factors for the sentencing judge to consider in deciding whether the acceptance of responsibility discount is warranted, does state that ordinarily the “adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse,” it also makes clear that going to trial does not disqualify a defendant from the reduction where, for instance, her pretrial conduct clearly evinces acceptance of responsibility. Id. at Application Note 2. Finally, the commentary notes that a defendant who pleads guilty may be denied the credit where other “conduct of the defendant ... is inconsistent with ... acceptance of responsibility.” Id. at Application Note 3. In sum, extrapolating from pre-Guidelines practice, § 3E1.1 treats a plea of guilty as a “positive” factor that may help to qualify a defendant for a two-level discount. But the Guidelines emphatically do not envision treating a defendant’s exercise of his constitutional right to go to trial as a “negative” factor sufficient by itself either to disqualify him from an acceptance of responsibility credit or even to be weighed against other positive evidence “clearly” demonstrating an acceptance of responsibility. Exercise of a constitutional right was meant to be a neutral factor in the calculus. In United States v. Watt, 910 F.2d 587, 592 (9th Cir.1990), the Ninth Circuit so read § 3E1.1, holding that “in determining a defendant’s acceptance of responsibility, a sentencing court cannot consider against a defendant any" }, { "docid": "23467823", "title": "", "text": "house that particular night. Unfortunately for him and what is binding upon the defendant and upon government and upon the Court at this time is the jury’s verdict. And I cannot go behind that verdict to make new findings of fact regarding the guilt or innocence of the defendant. I am bound by the verdict. J.A. 55. On appeal, defendant argues that he “has always believed that he is not guilty under Counts 1 or 2 ... [and that] [h]e accepted the responsibility to the extent the truth would bear.” Brief of Appellant 39. Section 3E1.1 of the Guidelines provides that “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.” Whether the defendant clearly demonstrates acceptance of responsibility is a finding of fact. United States v. Williams, 940 F.2d 176, 181 (6th Cir.), cert. denied, — U.S. -, 112 S.Ct. 666, 116 L.Ed.2d 757 (1991). Therefore, we review the district court’s determination only for clear error. We conclude that the district court did not commit clear error by failing. to decrease defendant’s offense level by two levels pursuant to U.S.S.G. § 3E1.1. As explained by a commentary note, a decrease pursuant to this provision is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct. U.S.S.G. §" }, { "docid": "17475859", "title": "", "text": "than a minor participant). B. Nor did the district court commit clear error in denying Mahan's request for an offense level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, despite the fact that Mahan admitted his conduct in copying the flyers. A defendant is entitled to a two-level reduction in sentence only if he \"clearly demonstrates acceptance of responsibility for his offense.\" U.S.S.G. § 3E1.1(a). \"The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.\" U.S.S.G. § 3E1.1 comment. (n.5). We believe that Mahan is not entitled to an “acceptance of responsibility” reduction where he pleaded not guilty before the district court, was found guilty only after a jury trial, and on appeal continues to downplay his participation in the conspiracy to intimidate the family into fleeing their home. “Although the guidelines permit a defendant to receive credit under § 3El.l(a) even if he goes to trial, the reduction is ‘not intended for a defendant who puts the government to its burden of proof at trial by denying the factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.’ ” United States v. Hill, 167 F.3d 1055, 1071 (6th Cir.1999) (quoting U.S.S.G. § 3E1.1 comment, (n. 2)). This commentary provides that while conviction by trial does not automatically preclude an acceptance of responsibility reduction, an adjustment in such a case is to be rare, and is conceivable primarily in a situation in which a defendant admits his factual guilt but goes to trial to test the constitutionality or applicability of the governing criminal statute. U.S.S.G. § 3E1.1, comment, (n. 2). That is not the case here. Mahan did not go to trial simply to test the constitutionality or applicability of the civil rights laws under which he was convicted. Instead, he steadfastly contested his factual guilt, claiming that he duplicated the flyers without any specific knowledge that they would be scattered on the family’s lawn and without any intent to do harm. Ma-han" }, { "docid": "23686460", "title": "", "text": "conduct. “This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, commentary n. 2. However, the fact that a defendant is convicted at trial does not automatically preclude such a reduction: In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). Id. (emphasis added) In United States v. Garcia, 182 F.3d 1165, 1173 (10th Cir.1999), we concluded that an entrapment defense may present “one of those ‘rare situations’ contemplated by the Sentencing Guidelines in which a defendant may go to trial and still receive an acceptance of responsibility reduction” because the defense challenges the applicability of a statute to the defendant’s conduct. However, we emphasized that our holding in Garcia did “not mean that the simple assertion of the entrapment defense coupled with acknowledgment of the underlying criminal activity automatically entitles a defendant to a two-point acceptance of responsibility reduction.” Id. Instead, the defendant must still demonstrate “acceptance of responsibility, primarily though pre-trial statements and conduct, before an acceptance of responsibility reduction would be warranted.” Id. at 1174 (citing U.S.S.G. § 3E1.1, commentary n. 2). In this case, the district court found that Davis was not entitled to an acceptance of responsibility reduction in part because he “did not confess, cooperate with the police, or engage in conduct that would otherwise demonstrate an acceptance of responsibility prior to trial.” Davis II, 2000 WL 1665261, at *4. The court also observed that Davis admitted his involvement only after the government presented its case in chief — during which Davis refused to stipulate to anything and “put the government to" }, { "docid": "16771185", "title": "", "text": "may not prove true in every case, it is certainly rational, and we see nothing in either the language of the guideline nor its underlying principles that suggests that the defendant’s subjective state of mind is in any way relevant to the guideline’s application. III. Muhammad also challenges the district court’s refusal to award him a reduction in his sentence based on acceptance of responsibility. Under the sentencing guidelines, a defendant is entitled to a two-level reduction to his calculated offense level if he “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). We review a district court’s factual determination with respect to acceptance of responsibility under a clearly erroneous standard. See United States v. Ceccarani, 98 F.3d 126, 129 (3d Cir.1996); see also U.S.S.G. § 3E1.1 cmt. 5 (“The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.”). The defendant bears the burden of establishing by a preponderance of the evidence that he is entitled to the sentence reduction. See United States v. Rodriguez, 975 F.2d 999, 1008 (3d Cir.1992). The reduction for acceptance of responsibility generally does not apply to a defendant “who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, cmt. 2. However, in “rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial.” Id. Such a situation may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt {e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct. Id. The district court based its decision to deny Muhammad the reduction on" }, { "docid": "19738691", "title": "", "text": "they may be reduced to some extent. In the same vein, a defendant who is unwilling to accept responsibility for some of the charges against him has not really “come clean” and faced up to the full measure of his criminal culpability. United States v. Thomas, 242 F.3d 1028, 1034 (11th Cir.2001); see U.S.S.G. § 3E1.1, comment, (n.2) (“Th[e § 3E1.1] adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.”). Similarly, a defendant who factually contests his guilt on some of his offenses of conviction has not accepted responsibility in the global sense required by the guidelines and therefore should not remain eligible to receive a § 3E1.1 reduction. A. In contravention to the language, structure, and purpose of § 3E1.1, its commentary, and the guidelines as a whole, the majority concludes that the phrase “offense(s) of conviction” in the commentary to § 3E1.1 does not encompass § 924(c)-type offenses. The majority bases its conclusion primarily on the fact that a determination regarding whether a defendant is entitled to an acceptance of responsibility reduction is made before the guideline range is calculated and thus before the sentence for the § 924(c)-type offense is added. See ante, at 199. This reasoning is misplaced, however. The sequence to which the majority refers tells us only that conduct underlying non- § 924(c)-type offenses will not affect the length of the consecutive sentence imposed for a § 924(c)-type offense. It bears not at all on the question of whether the Commission intended that a defendant must accept responsibility for all of his offenses of conviction to obtain a reduction or whether something less is required. As I have explained, the critical point we should draw from the sequence of the acceptance of responsibility determination is that the Commission determined that a reduction for acceptance of responsibility is not applied until the district court has determined a single offense level for all offenses of conviction. The" }, { "docid": "15125478", "title": "", "text": "its findings of fact for clear error. United States v. Mack, 343 F.3d 929, 935-36 (8th Cir.2003). The district court’s finding that Daniels marched Hayes down the street at gunpoint received ample support in the evidence, and the testimony showed that Daniels’ actions at the scene either involved an attempt to use physical force or a threat of physical force against Hayes. This conduct constituted a crime of violence under U.S.S.G. § 4B1.2(a)(l). Accordingly, the district court properly determined that Daniels’ offense level was 34 and his criminal history category was VI. B. Acceptance of Responsibility Daniels argues the court should have granted him a two-level reduction for acceptance of responsibility because he claims that he admitted to possessing the ammunition. This court reviews the district court’s interpretation of the sentencing guidelines de novo and its factual findings for clear error. United States v. Herron, 539 F.3d 881, 887 (8th Cir.2008). Daniels bears the burden of demonstrating that he is entitled to a reduction for his acceptance of responsibility. See id. at 887-88. To receive this reduction, a defendant cannot minimize his conduct or partially accept responsibility. United States v. Ngo, 132 F.3d 1231, 1233 (8th Cir.1997). Moreover, Application Note 2 to U.S.S.G. § 3E1.1 provides: This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial" }, { "docid": "6444132", "title": "", "text": "2414-15. Furthermore, the regulatory exception has two requirements—first, that the take be incidental; second, that it be “reported within 24 hours” to FWS. 50 C.F.R. § 17.84(i)(3)(viii). MeKittrick does not claim to have reported the taking, so he would not qualify for the exception even if his take had been incidental. E. Acceptance of Responsibility Finally, MeKittrick argues that, because he admitted shooting the wolf and only contested his guilt based on the applicability and validity of the regulations, the sentencing magistrate judge should have allowed a two-point reduction for acceptance of responsibility under U.S.S.G. § 3El.l(a). 1. Standard of Review The magistrate judge’s findings of fact underlying an application of the Sentencing Guidelines are reviewed for clear error. See United States v. Thompson, 80 F.3d 368, 370 (9th Cir.1996). Because “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility,” a judge’s determination under section 3E1.1 is “entitled to great deference on review.” U.S.S.G. § 3E1.1 (Application Note 5). 2. Analysis The Sentencing Guidelines provide for a two-point decrease in offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). MeKittrick contends that because he “truthfully admitted] the conduct comprising the offense(s) of conviction,” U.S.S.G. § 3E1.1 (Application Note 1(a)), he should have been allowed the reduction. MeKittrick did not plead guilty, however, and the commentary instructs that the “adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial,” except in “rare situations.” Id. (Application Note 2). One of those rare situations may occur when the defendant “goes to trial to assert and preserve issues that do not relate to factual guilt ... [such as] a challenge to the applicability of a statute to his conduct.” Id. McKittrick’s was such a trial — he contended that the regulations were invalid or inapplicable and that they required a level of intent he did not possess. Therefore, MeKittrick was eligible for a section 3E1.1 reduction. In establishing the offense level, the magistrate judge adopted the findings of fact in the" }, { "docid": "518726", "title": "", "text": "intended to distribute it. As a result, the probation office recommended against granting her a reduction in offense level for acceptance of responsibility under § 3E1.1 of the Sentencing Guidelines. McNeal objected to the offense level recommended in the PSR, arguing that she should receive a two-level reduction because she admitted to the element of possession even though she refused to admit the element of intent to distribute. Judge Murphy overruled McNeal’s objections to the PSR, saying that he never heard a clear, unequivocal admission of guilt from McNeal, and imposed a sentence of 63 months’ imprisonment. Judge Murphy sentenced McNeal at the low end of the applicable guideline range (63 to 78 months); McNeal received a sentence only three months longer than the statutory minimum for her offense. See 18 U.S.C. § 841(b)(1). On appeal, McNeal first claims that the district court abused its discretion by basing its denial of an aceeptance-of-responsibility reduction under § 3E1.1 on the fact that she elected to go to trial. McNeal argues that the court failed to realize that the Sentencing Guidelines do not preclude a defendant convicted at trial from receiving an acceptanee-of-responsibility reduction. We review a district court’s determination of a defendant’s acceptance of responsibility under § 3E1.1 for clear error. United States v. Utecht, 238 F.3d 882, 888 (7th Cir.2001). A defendant is not entitled as a matter of right to an acceptance-of-responsibility reduction. U.S.S.G. § 3E1.1, comment, (n.3); United States v. Booker, 248 F.3d 683, 690 (7th Cir.2001). It is the defendant’s burden to prove that the reduction applies in her case. Booker, 248 F.3d at 690. McNeal correctly notes that a defendant who exercises her constitutional right to a trial does not automatically forfeit a reduction in offense level for acceptance of responsibility. See U.S.S.G. § 3E1.1 comment (n.2); United States v. Williams, 202 F.3d 959, 962 (7th Cir.2000). The aceeptance-of-responsibility reduction, however, “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt.” U.S.S.G. § 3E1.1 comment (n.2); Williams, 202 F.3d" }, { "docid": "6843123", "title": "", "text": "received to the amount of tax liability he sought to evade. United States v. Moore, 997 F.2d 55, 59-62 (5th Cir.1993) (tax loss calculation dependent upon intended rather than actual loss); see also United States v. Rice, No. 95-2174,1996 WL 44452 at *1-4 (10th Cir., Feb. 5, 1996) (unpublished) (tax loss calculated by adding amount of tax refund to amount of unpaid tax liability). II. Defendant also argues that the district court improperly refused to decrease his base offense level for acceptance of responsibility. Section 3E1.1 of the 1991 Guidelines provides that a district court should reduce a defendant’s base offense by two levels where “the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3E1.1 (emphasis added). The commentary to § 3E1.1 states the two-level reduction “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1 application note 2. A defendant bears the burden of establishing his entitlement to a two-level reduction under § 3E1.1. United States v. Nelson, 54 F.3d 1540,1544 (10th Cir.1995). The district court has broad discretion to determine whether to award the reduction, and we will not disturb the court’s decision absent clearly erroneous findings. United States v. Sloan, 65 F.3d 149,152 (10th Cir.1995). Throughout these proceedings, Defendant never admitted that his conduct was willful or that he intended to commit a crime. Defendant instead claimed that he mistakenly filed a working draft of his 1991 tax return. Although he now appears willing to accept the consequences of his conviction, his late conversion is insufficient to establish acceptance of responsibility under § 3E1.1. We therefore conclude that Defendant did not demonstrate an acceptance of responsibility under § 3E1.1 and the district court was not clearly erroneous in refusing to grant the requested reduction. AFFIRMED. . On his filed return, Defendant claimed a refund of $5,327.00. Due to a calculation error on the false return, however, the IRS" }, { "docid": "518727", "title": "", "text": "that the Sentencing Guidelines do not preclude a defendant convicted at trial from receiving an acceptanee-of-responsibility reduction. We review a district court’s determination of a defendant’s acceptance of responsibility under § 3E1.1 for clear error. United States v. Utecht, 238 F.3d 882, 888 (7th Cir.2001). A defendant is not entitled as a matter of right to an acceptance-of-responsibility reduction. U.S.S.G. § 3E1.1, comment, (n.3); United States v. Booker, 248 F.3d 683, 690 (7th Cir.2001). It is the defendant’s burden to prove that the reduction applies in her case. Booker, 248 F.3d at 690. McNeal correctly notes that a defendant who exercises her constitutional right to a trial does not automatically forfeit a reduction in offense level for acceptance of responsibility. See U.S.S.G. § 3E1.1 comment (n.2); United States v. Williams, 202 F.3d 959, 962 (7th Cir.2000). The aceeptance-of-responsibility reduction, however, “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt.” U.S.S.G. § 3E1.1 comment (n.2); Williams, 202 F.3d at 962; United States v. Bonanno, 146 F.3d 502, 513 (7th Cir.1998). A defendant convicted at trial may qualify for the reduction only in “rare situations.” U.S.S.G. § 3E1.1 comment (n.2); United States v. Clay, 37 F.3d 338, 343 (7th Cir.1994). For example, a defendant may admit factual guilt but proceed to trial in order to challenge the constitutionality or the applicability of a statute and still receive an acceptance-of-responsibility reduction. U.S.S.G. § 3E1.1 comment (n.2); Williams, 202 F.3d at 962. But this exception for “rare situations” does not encompass those instances in which a defen dant admits to some, but not all, of the essential factual elements comprising her offense. Williams, 202 F.3d at 962. In this case, McNeal challenged not a legal principle, but an essential factual element of the offense with which she was charged. Nothing in the record suggests that McNeal ever represented that she wished to challenge a principle of law. See Williams, 202 F.3d at 962. Rather, she adamantly denied and contested the fact that she intended to distribute" }, { "docid": "23382283", "title": "", "text": "chances of receiving [such an] adjustment.” Id. Only in “rare situations” a defendant who elects to exercise his constitutional right to a trial will qualify for a decrease in his offense level for acceptance of responsibility. As explained in Note 2 of the Comment to § 3E1.1: This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (ie.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct. U.S.S.G. § 3E1.1 cmt. note 2. In the case at bar, the district court correctly determined that Baltas was not entitled to an offense level reduction pursuant to § 3E1.1. First, the record is barren of any pretrial statements or con duct indicating that Baltas accepted responsibility. Second, his situation does not fit any of the examples presented in the guideline commentary, and it is by no means “rare.” He asserts nonetheless that he did not proceed to trial to contest factual guilt, but “to test the strength of the governments case.... ” In this view, he suggests that the trial court’s dismissal of the RICO counts, and the jury’s not-guilty verdicts as to the firearms counts tilt the balance in his favor. This argument is unavailing; Baltas could have pleaded to the drug count and still gone to trial on the remaining ones. See United States v. DeLeon Ruiz, 47 F.3d 452, 455 (1st Cir.1995)" }, { "docid": "3933715", "title": "", "text": "of responsibility, further clarifies our analysis. Application note 1(a) lists examples of appropriate considerations in determining whether a defendant qualifies for a reduction for acceptance of responsibility. One consideration is truthfully admitting the conduct comprising the conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable. The commentary continues: “[A] defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction under subsection (a).” U.S.S.G. § 3E1.1 comment, (n.l(a)). In our case, Soler admitted he was involved with two kilograms, but denied involvement with a five-kilogram quantity. The district judge, moreover, found Soler only responsible for two kilograms. Application note 2 states that the adjustment does not apply to a defendant who puts the government to its burden of proof by denying the essential factual elements, and only then admits guilt and ex presses remorse. We emphasize, however, that conviction by trial does not automatically prevent a defendant from receiving a reduction for acceptance of responsibility. See, e.g. United States v. McKinney, 15 F.3d 849, 851-54 (9th Cir.1994), cert. denied, — U.S. -, 116 S.Ct. 162, 133 L.Ed.2d 105 (1995) (defendant granted a reduction for acceptance of responsibility even though he had already been convicted at trial where district court thwarted defendant’s attempts to plead guilty). A defendant may demonstrate acceptance of responsibility even though he goes to trial and is convicted, which may occur when he asserts and preserves issues that did not relate to factual guilt. See U.S.S.G. § 3E1.1, comment, (n.2). In such a situation a determination that a defendant has accepted responsibility will be based primarily on pre-trial statements and conduct. See id. We conclude that this case fits within this commentary and case law. Soler was at all times ready to plead guilty to two kilograms. The government, however, refused to accept his plea unless he would admit to his involvement with five kilograms. By refusing to accept Soler’s guilty plea, the government gave Soler no choice but to go to trial. Ultimately, however, the district" }, { "docid": "7573805", "title": "", "text": "However, this court has held that a local ordinance prohibiting “the amplification of words or sounds that are ‘obscene,’ with no further definition of that term” was not unconstitutionally vague when the term was construed to conform to the requirements of the First Amendment as set forth in Miller. Rudzavice’s claim is without merit. IV Rudzavice’s final two contentions relate to his sentencing. Rudzavice argues that he should have received an offense-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. We “review[ ] a district court’s refusal to reduce a defendant’s offense level for acceptance of responsibility under § 3E1.1 with a standard even more deferential than a purely clearly erroneous standard.” We will not disturb a district court’s ruling that a defendant is not entitled to a sentencing reduction for acceptance of responsibility unless “it is without foundation.” Section 3E1.1 provides for a reduction of the offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” The commentary states: 2. This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct. “The defendant bears the burden of proving entitlement to a decrease in offense level for acceptance of responsibility.” Rudzavice argues that he is entitled to a reduction for acceptance of responsibility because the only reason he went to" }, { "docid": "13125153", "title": "", "text": "erred in denying Contreras’s request for a downward adjustment for acceptance of responsibility pursuant to § 3E1.1. Because “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility,” we review with “great deference.” U.S.S.G. § 3E1.1, cmt. n. 5. We will reverse only if the district court’s findings are clearly erroneous and completely lack foundation. United States v. Greger, 339 F.3d 666, 672 (8th Cir.2003). Section 3El.l(a) provides for a two-level reduction in a defendant’s offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” The commentary to this guideline further provides: This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct. U.S.S.G. § 3E1.1, cmt. n. 2. The jury convicted Contreras of three of the four charges against him. Contreras did not admit factual guilt to any of those charges and, instead, put the government to its burden on all counts. Although Contreras claims that he would have entered into a plea agreement if the government would have dismissed the Street Sweeper shotgun charge against him-the charge of which the jury ultimately found Contreras not guilty-this mere assertion, without more, is an insufficient ground for reversal. See United States v. Velez, 46 F.3d 688, 693-94 (7th Cir.1995) (affirming the district court’s refusal to grant" }, { "docid": "5504376", "title": "", "text": "“rigid rules” of the Guidelines. It does not appear from the transcript of the sentencing hearing that the court took into account that it might depart downwards on the grounds of incomplete duress and that in making the determination of incomplete duress it was free to take into account the subjective vulnerability of Breck. For this reason, we remand Breck’s case for resentencing. The Defense Of Duress And The Acceptance Of Responsibility. Breck, Johnson and Wood all asked for a reduction on the grounds that they had accepted responsibility. In each case the district court denied the reduction, on the ground that they had not accepted responsibility in a timely fashion. The Guidelines provide: “(a) If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense level by 2 levels, (b) A defendant may be given consideration under this section without regard to whether his conviction is based upon a guilty plea or a finding of guilt by the court or jury or the practical certainty of conviction at trial.” U.S.S.G. § 3E1.1. The commentary gives examples of the circumstances under which a defendant qualifies for this provision. The circumstances include “voluntary and truthful admission to authorities of involvement in the offense and related conduct” and “timeliness of the defendant’s conduct in manifesting the acceptance of responsibility.” The Guidelines make an effort not to penalize a defendant for asserting his constitutional right to a trial, but go dangerously close to imposing such a penalty. Yet it is established that to penalize a defendant for exercising a constitutional right is unconstitutional. United States v. Watt, 910 F.2d 587, 591-92 (9th Cir.1990). The commentary adds: “This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction.” U.S.S.G. § 3E1.1. The relation of this part of the Guidelines to the" }, { "docid": "19738695", "title": "", "text": "contesting his factual guilt); United States v. Ragsdale, 426 F.3d 765, 781-82 (5th Cir.2005) (same); United States v. Gorsuch, 404 F.3d 543, 546 (1st Cir.2005); United States v. Forrest, 402 F.3d 678, 688-89 (6th Cir.2005) (same); United States v. Yirkovsky, 338 F.3d 936, 941 (8th Cir.2003) (same); United States v. Hernandez, 330 F.3d 964, 984-85 (7th Cir.2003) (same); United States v. Cox, 299 F.3d 143, 149 (2d Cir.2002) (same); cf. United States v. Gordon, 895 F.2d 932, 936 (4th Cir.1990) (“holding] that in order for section 3E1.1 of the guidelines to apply, a defendant must first accept responsibility for all of his criminal conduct”). Although the guideline commentary lists the truthful admission of the conduct comprising the offenses of conviction as only one factor to be considered in determining whether to grant an acceptance of responsibility reduction, it also clearly states that proceeding to trial and contesting factual guilt is inconsistent with accepting responsibility for one’s offenses: This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt {e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct. U.S.S.G. § 3E1.1, comment, (n.2). Applying the interpretive maxim expressio uni-us est exclusio alterius, I conclude that the example given here, in which the defendant proceeds to trial to preserve issues not relating to factual guilt, demonstrates that a defendant is not entitled to a reduction" }, { "docid": "22561993", "title": "", "text": "to him by Jesse Nino, this is not an argument that was articulated in the brief, and it is not supported by any evidence of record. Finally, the 30 pounds from June 1994 was properly attributed to him by basically the same rationale; he was undeniably aware of the amount, since he was involved in a discussion about it, and he was indisputably a member of the conspiracy at the time. b. Acceptance of Responsibility The sentencing guidelines provide that a defendant is entitled to a two-level reduction in sentence if he “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). “The defendant bears the burden of showing by a preponderance of the evidence that the reduction is justified.” United States v. Guthrie, 144 F.3d 1006, 1012 (6th Cir.1998). As explained by a commentary note, a decrease pursuant to this provision is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct. United States v. Vincent, 20 F.3d 229, 239 (6th Cir.1994) (quoting U.S.S.G. § 3E1.1 comment, (n.2)). Scott argues that the district court incorrectly limited the acceptance of responsibility reduction for a defendant who went to trial to defendants who wish only to preserve a legal argument; according to Scott, the reduction should also be available when, as here, a defendant admits his" }, { "docid": "3997831", "title": "", "text": "In its cross-appeal, the government contends that the district court incorrectly granted Siegel a U.S.S.G. § 3E1.1 reduction for acceptance of responsibility. In addition, the government maintains that the district court erred by sentencing Siegel under the fraud and deceit guideline, U.S.S.G. § 2F1.1, rather than the bribery of a public official guideline, U.S.S.G. § 2C1.1. A ACCEPTANCE OF RESPONSIBILITY On appeal, the government argues that Siegel should not have received a three-level reduction for acceptance of responsibility because he denied having had any guilty intent. In response, Siegel contends that he was entitled to the reduction because he admitted all the relevant facts and cooperated with the government’s investigation, while preserving his legitimate legal position regarding the applicability of the statute to his conduct. We review the district court’s determination that Siegel accepted responsibility for clear error. United States v. Anderson, 23 F.3d 368, 369 (11th Cir.1994) (per curiam). To receive a reduction under § 3E1.1, a defendant must prove that he clearly accepted responsibility for his offense. See id. The reduction does not apply to “a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, comment, (n.2). Nonetheless, a defendant may, “[i]n rare situations,” be entitled to this reduction if he goes to trial to assert and preserve issues unrelated to factual guilt, such as the applicability of a statute to his conduct. Id. Still, a defendant who contends that he did not possess fraudulent intent is making a factual, not a legal, challenge to the government’s criminal allegations that precludes a sentence reduction for acceptance of responsibility. See United States v. Smith, 127 F.3d 987, 989 (11th Cir.1997) (en banc) cert. denied, — U.S. -, 118 S.Ct. 1202, 140 L.Ed.2d 330 (1998); see also Sanchez-Corcino, 85 F.3d at 555-56. By its terms, 42 U.S.C. § 1320a-7b(b)(2) makes it illegal for any person knowingly to offer any payment “to induce” a referral for services covered by the federal government. Citing this provision, Siegel argues" } ]

[ { "docid": "22119585", "title": "", "text": "finding would support a conclusion that the employer terminated Causey because of his age and race. Causey’s claim that he was not considered for new positions to which his duties were transferred is also without support in the record. Causey’s own papers suggest no new positions were created to handle his duties and show that those duties were split between other BOT divisions. After reviewing Causey’s other evidence, we conclude none of it supports an inference that the City impermissibly considered Causey’s race and age when making its decision to terminate him. E. Causey further challenges the district court’s dismissal of his retaliation claims. Causey contends he was discharged in retaliation for his October 1992 EEO charge. However, he has again failed to set forth a prima facie ease. “The test for proving prima facie retaliatory discharge requires that (1) plaintiff engaged in protected activity, such as filing an EEO complaint; (2) the employer took adverse employment action against plaintiff; and (3) a causal connection existed between the protected activity and the adverse action.” Carter, 33 F.3d at 460. Causey has failed to satisfy the third element. Thirteen months passed between his initial charge and termination. A thirteen month interval between the charge and termination is too long to establish causation absent other evidence of retaliation. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir.1998) (“A lengthy time lapse between the employer becoming aware of the protected activity and the alleged adverse employment action ... negates any inference that a causal connection exists between the two.”); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir.1997) (four month lag between protected activity and termination not sufficient to justify an inference of causation). Causey introduced no other evidence to support a finding that a causal connection existed between his charge and termination. Even if causation were established, the City’s budgetary constraints provide a legitimate non-diseriminatory reason for its decision to reduce its workforce, and Causey introduced no competent evidence suggesting this rationale was pretextual. We conclude that the district court properly determined Causey" } ]

[ { "docid": "6098614", "title": "", "text": "victim of a hostile work environment. Although plaintiff has satisfied the first three requirement of stating a prima facie case, defendant must prevail on summary judgment with respect to the retaliation claim because plaintiff has failed to meet the fourth requirement. Plaintiff has not shown a causal connection between the protected activity and the adverse employment action, which occurred several months after the protected speech. See Hollander v. American Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir.1990). “Proof of the causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.” Quinn, 159 F.3d at 769 (discharge that occurred less than two months after plaintiff filed an internal discrimination complaint and only 10 days after she filed a complaint with New York Division of Human Rights established close temporal relation between protected activity and discharge) (internal quotations omitted); see also Manoharan, 842 F.2d at 593; Stringfellow v. Wyckoff Heights Med. Ctr., No. 95 Civ. 3041(ILG), 1998 WL 760286, at *6 (E.D.N.Y. Sep.9, 1998) (plaintiff did not satisfy “causal connection” of his retaliation claim where he was terminated more than four months after he filed a complaint with the EEOC). Here, the adverse employment action was too removed in time from the protected activity. Plaintiffs complaints about Baschiera’s conduct, including the e-mail, took place in or before November of 1996. He was fired in April of 1997 — 5 months later — by a different supervisor than the one to whom he had complained. In addition, several incidents occurred during that five-month period in which he had problems with co-workers, breaking the chain of causation. Finally, even if Kodengada is considered to have stated a prima facie case of discrimination, he has failed to adduce any admissible evidence rebutting defendant’s legitimate, nondiscriminatory reasons for his firing. In other words, he has failed to adduce evidence suggesting that defendant’s reasons for his firing were pretextual. See Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d Cir.1997) (“Any legitimate, non-discriminatory reason will rebut the presumption triggered by the prima facie case.”); Van Zant," }, { "docid": "2192812", "title": "", "text": "1996 from McDevitt. The second was a complaint made to Campbell sometime in 1997 about the different standards for Blacks, unequal pay, discipline, and appraisals, and failure of McDevitt to provide the October 1997 midyear review. The third was a complaint made to Smith sometime in 1997 about Smith’s February 1997 evaluation and unequal treatment. The adverse action is alleged to be Plaintiffs discharge on July 22, 1997. According to Plaintiff, the proximity in time between his complaints and the May 8, 1997 Adverse Performance Notice and July 22, 1997 termination should be sufficient to constitute evidence of a causal connection. Even if it is assumed that Plaintiffs three complaints constituted statutorily protected actions and that Plaintiffs discharge was an adverse employment action, thus satisfying the first two prongs of the prima facie case, Plaintiff has failed to sufficiently establish the third prong: a causal connection. First, the causal connection is severed by the multiple com plaints received by Defendants about Plaintiffs treatment of employees, which occurred both before and after Plaintiffs alleged complaints about discriminatory treatment. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.1999) (stating that intervening unprotected conduct, such as violating an employer’s rules or disrupting the workplace, can “erode[ ] any causal connection that was suggested by the temporal proximity of [the] protected conduct and [the] termination.”). Second, Plaintiffs only argument for establishing a causal connection, the temporal proximity of the protected actions and the discharge, is not persuasive given the gap in time between the complaints, which were in approximately February 1997, and the May 1997 disciplinary notice and July 1997 termination. See Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.1997) (holding that a “three-month period between the [protected] activity and termination, standing alone, does not establish a causal connection”). 3. Legitimate, Nondiscriminatory Reasons and Pretext Even if it is assumed that Plaintiff could establish a prima facie case of retaliation, Home Depot has proffered a legitimate, nondiscriminatory reason for the May 1997 disciplinary warning and July 1997 termination based on its receipt of employee complaints of mistreatment and disrespect," }, { "docid": "12434137", "title": "", "text": "the purposes of Title VII retaliation claims. Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir.1997). In order to successfully establish a. retaliation claim, Plaintiff must prove a .causal connection between her complaint and her termination. The only evidence -Plaintiff puts forth supporting a causal connection is the temporal relationship between her request for a transfer and the date of her termination. A causal link may be proven through evidence that an adverse employment action came right after the employee engaged in a protected activity. Canitia v. Yellow Freight System, Inc., 903 F.2d 1064 (6th Cir.1990). At this juncture, the Court concludes that Plaintiff has established a prima facie case of unlawful retaliation based solely on the temporal proximity of her discharge to her complaint of sexual harassment. In response to Plaintiffs showing of a causal connection, Tectum offers evidence of legitimate business reasons for terminating her employment, ie., Plaintiffs alleged failure to adequately manage leads and bounce back cards; Plaintiffs alleged discussion of bonus checks with other employees against company policy; and Plaintiffs alleged derogatory statements about supervisors. (Exhibit 10 attached to Motion for Summary Judgment). The Court concludes that Defendant has responded to Plaintiffs prima facie showing by presenting evidence that it had a legitimate business justification for Plaintiffs discharge. To rebut the Defendant’s showing, Plaintiff must show pretext. To show that the proffered reasons are pretextual, Plaintiff must show that (1) the reasons offered had no basis in fact, (2) the reasons did not actually motivate the discharge, or (3) the reasons were insufficient to motivate discharge. Manzer v. Diamond Shamrock Chemicals, Co., 29 F.3d 1078, 1084 (6th Cir.1994). See also Maddox v. University of Tennessee, 62 F.3d 843, 848 (6th Cir.1995). The first type, that the reasons had no basis in fact, is proven by evidence tending to establish that the proffered bases for Plaintiffs termination simply are false. Manzer, 29 F.3d at 1084, citing Anderson v. Baxter Healthcare, 13 F.3d 1120, 1123-24 (7th Cir.1994). The second type, that the reasons did not actually motivate the discharge, is proven by “admitting] the factual basis" }, { "docid": "21948480", "title": "", "text": "in complaining about racial harassment, and that the Plaintiff later suffered an adverse employment action in being terminated. See McDowell I, 788 F.Supp.2d at 82. Unlike the previous complaints, however, the Plaintiff has now plausibly asserted a causal connection between the two by alleging additional, more detailed facts surrounding the Plaintiffs termination. A causal connection may be established “either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Gordon, 232 F.3d at 117. Previously, this Court held that the Plaintiffs reliance solely on the estimated three month gap between the protected activity and the retaliatory act was insufficient to establish a causal connection. See McDowell I, 788 F.Supp.2d at 82-83. The Second Circuit has not provided a bright-line test to definitively resolve the issue of temporal proximity. See Espinal v. Goord, 558 F.3d 119, 129 (2d Cir.2009). Here, the temporal proximity is no longer the sole basis to establish the requisite element in the Plaintiffs retaliation claim. In his second amended complaint, the Plaintiff has now alleged additional facts that plausible contend that his termination was in retaliation for engaging in a protected activity. First, as discussed above, the Defendant allegedly proffered two false reasons for the Plaintiffs discharge: the negative impact his schooling had on his work productivity and the absence of any available work assignments. As stated above, the Plaintiff asserts that neither reason was true because his school work had never previously been an issue addressed by the Defendant until the termination, and the subsequent hiring of another technician makes it apparent that there were, in fact, additional available work assignments. Second, also discussed above, the technician hired by the Defendant after the Plaintiffs termination was not black and no white co-workers were terminated, which therefore establishes an inference that the Plaintiffs termination was based on his race. When viewed in the totality of the facts alleged, namely the temporal" }, { "docid": "1446613", "title": "", "text": "results in the cessation of alleged harassment. Spicer v. Commonwealth of Virginia, supra, at 711. C. Retaliation Claim A plaintiff may establish a case of retaliation for reporting sexual harassment through use of a “McDonnell Douglas scheme.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); McNairn v. Sullivan, 929 F.2d 974, 980 (4th Cir.1991). To make out a prima facie case of retaliation, plaintiff would have to show the following: (1) he engaged in protected activity; (2) he was subjected to an adverse employment action; and (3) a causal relationship exists between the first two elements. If a plaintiff can establish such a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment action. Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Defendants concede, as will the court, that plaintiff has submitted evidence that would support the first two elements. Plaintiff, however, has presented no evidence of any causal link between the first two elements that would satisfy the third element of a prima facie case. In this case, the first two elements are separated by six months. Close temporal proximity between the first elements has been held to satisfy the third element. See Carter v. Ball, 33 F.3d 450 (4th Cir.1994) (five months); Williams v. Cerberonics, Inc., 871 F.2d 452 (4th Cir.1989) (four months). Likewise, distant temporal proximity may indicate no retaliatory motivation. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739 (11th Cir.1996). This court cannot find that the period of six months between plaintiffs allegations and his termination would amount to close temporal proximity contemplated by the appellate court in Carter. This lack of temporal proximity is especially lacking where, as here, a plaintiff received favorable evaluations and promotions between the time when he complained and when he was fired. The court has also searched the record for any other-than-temporal causal connection between plaintiffs complaints and his termination. None has been found. Finding that plaintiff has failed to establish a causal" }, { "docid": "8215290", "title": "", "text": "and adverse employment action are all cases where the plaintiff is relying exclusively on a temporal nexus to establish the causation element of a prima facie case. See, e.g., Johnson v. Nicholson, No. 05 cv 2740, 2007 WL 1395546, at *6 (E.D.N.Y. May 11, 2007) (“If a plaintiff is relying on temporal proximity alone, the temporal relationship between the protected activity and the adverse action must be very close”). Generally, however, a plaintiff can establish a causal link either: “(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Gilford v. City of New York, No. 03 cv 0091, 2004 WL 1574695, at *7 (S.D.N.Y. July 14, 2004). Here, Thomas has presented other evidence that Defendants harbored retaliatory animus such that reliance on a close temporal connection is not necessary for a reasonable jury to find a causal connection between his complaints of discrimination and his termination. Specifically, there was testimony that Baron stated that he would get rid of Thomas after Thomas complained. Agrawal also allegedly stated to Thomas after Thomas complained about his comments that he didn’t care what Thomas said since he was on a “five year plan anyway.” (Tr. 188:8-10.) Where there is such direct evidence of retaliatory animus, a close temporal connection between complaints and adverse employment action is not as critical, cf. Walter v. Westdeutscher Rundfunk, No. 03 Cv. 5676, 2004 WL 1052776, at *9 (S.D.N.Y. May 11, 2004) (although year elapsed between complaint and termination, where direct evidence of defendant’s retaliatory animus was alleged, plaintiff could establish a causal connection sufficient to survive a motion to dismiss). Moreover, there is evidence that Baron, who knew of Thomas’s complaints against him, sought to have Thomas fired well before his actual termination. Barker, Thomas’s direct supervisor, testified that Baron had suggested on at least two occasions that Thomas be terminated. (See Tr. 842:16-21.) The jury may well have determined, based on the evidence presented, that Baron and Agrawal were intent on seeing Thomas fired as of" }, { "docid": "12333122", "title": "", "text": "that the Court must consider is any combination of (1) evidence establishing the plaintiffs prima facie case; (2) evidence the plaintiff presents to attack the employer’s preferred explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff, such as independent evidence of discriminatory statements or attitudes on the part of the employer. Mastro v. Potomac Electric Power Co., 447 F.3d at 855 (citing Holcomb v. Powell, 433 F.3d at 896 and Aka v. Wash. Hosp. Ctr., 156 F.3d at 1289). 1. Plaintiffs Termination Defendant and plaintiff agree that plaintiff has met the requirements of the first two prongs of the prima facie test regarding plaintiffs termination. First, plaintiff engaged in a protected activity by making a discrimination complaint to the EEOC in 1998 and filing a lawsuit in 1999 based on that complaint. Second, defendant thereafter took an adverse action against plaintiff by terminating him from employment. The parties disagree over whether plaintiff has satisfied the third prong, which requires a causal connection between the protected activity and the adverse action. Finally, defendant argues that even if plaintiff has succeeded in making out a prima facie case, he has not demonstrated that the legitimate, non-retaliatory reason articulated by defendant for his termination is pretextual. A plaintiff may establish a causal connection between his participation in a protected activity and an adverse action through temporal proximity alone by showing that (1) the employer knew that the plaintiff engaged in protected activity, and that (2) the adverse action took place shortly after plaintiffs participation in that activity. See Holcomb v. Powell, 433 F.3d at 903; see also McKenna v. Weinberger, 729 F.2d at 791 (plaintiff established pri-ma facie retaliation case because her dis charge occurred “so closely” (22 days) after she complained about sexism). Courts generally have accepted time periods of between a few days and a few months between the protected activity and the adverse action, but have seldom allowed periods of more than a year to create the inference of a causal connection. See Brodetski v. Duffey, 199 F.R.D. 14, 17 (D.D.C.2001)" }, { "docid": "23175997", "title": "", "text": "of retaliation, a plaintiff must either offer direct evidence of retaliation, or proceed under a burden-shifting method. See Smart v. Ball State Univ., 89 F.3d 437, 440 (7th Cir.1996). Since Contreras has offered no direct evidence of retaliation, he must make the prima facie case for discriminatory retaliation. Under both Title VII and the ADA, the prima facie case requires that Contreras prove (1) that he engaged in statutorily protected activity; (2) that he suffered an adverse employment action; and (3) that there is a causal connection between the two events. Id. Once the prima facie case is established, the burden shifts to Suncast to articulate a legitimate and nondiscriminatory reason for its actions which Contreras must show to be a pretext for unlawful retaliation. Rennie v. Dalton, 3 F,3d 1100, 1108-09 (7th Cir.1993). Contreras claims that he was terminated on February 13, 1996 in retaliation for filing his EEOC charge on January 18, 1996. In that charge, Contreras claimed that defendants harassed him on the basis of his national origin and denied him reasonable accommodations. Yet, Contreras has presented nothing more than temporal proximity in support of his causal connection argument. “Timing may be an important clue to causation, but does not eliminate the need to show causation.” Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1179 (7th Cir.1998) (internal citation omitted). We -have held that absent other evidence of retaliation, a temporal relation is insufficient evidence to survive summary judgment. Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1136 (7th Cir.1997). The evidence shows that Contreras was terminated after a series of unexcused absences and acts of insubordination. He has done nothing to establish that his filing of an EEOC charge or request for accommodations even factored into Suncast’s decision to dismiss him. In fact, the pattern of events suggests that the complaint and request for accommodations were non-factors in his dismissal. Therefore, we agree with the district court that Contreras has failed to make the prima facie case for retaliation for both Title VII and ADA purposes. D. Contreras’s Motion for Summary Judgment Contreras filed a cross-motion" }, { "docid": "16353396", "title": "", "text": "conduct in the workplace, rather than his conduct at his party, may be relevant to the issue of whether Lindblom engaged in protected expression. Lindblom asserts that she told Flynn about Salmons’ conduct at his party and expressed discomfort about working with him in the classroom. It is unclear whether she accused him of sexual harassment in the workplace. However, even if Lindblom complained merely that Salmons’ conduct at the party made it uncomfortable' for her to work with Salm ons, her complaint would, this court believes, constitute protected expression. That is, whether her complaint was sufficient to put Flynn on notice that she needed to intervene to prevent workplace harassment is questionable, but regardless of what plaintiff complained about, defendants were not entitled to punish her for it. The second and third elements of the prima facie case are easily satisfied in this case. Plaintiffs termination constitutes adverse employment action and, therefore, satisfies the second element. Lindblom satisfies the third element because the temporal proximity of her complaint to Flynn-August 1-and the decision not to renew her contract-August 6-establishes a causal link between her protected expression and the adverse employment action. Adusumilli, 164 F.3d at 362 (“It is settled in this Circuit that, ‘a plaintiff may establish ... a [causal] link [between protected expression and adverse action] through evidence that the discharge took place on the heels of protected activity.’ ”) (citations omitted) (alterations in original). Thus, Lindblom established a prima facie case of retaliation relating to her termination. Challenger has met its burden of coming forward with a legitimate, nondiscriminatory reason for its adverse action, asserting that Lindblom was terminated because of repeated tardiness and lack of professionalism. The record shows that Lindblom was reprimanded for being tardy six times, and on two of those occasions, she was docked a half day’s pay for being over an hour late. Def. Memo., Exhibit C, Lindblom Depo. at 275-276. The record also shows that Lindblom was told in her performance evaluations in August 1994 and August 1995 that she needed to improve her professional image. In 1995, she was sent" }, { "docid": "22215771", "title": "", "text": "that she could perform the essential functions of a TPO posi tion with or without reasonable accommodation. Accordingly, the district court properly concluded that Plaintiff failed to establish a prima facie case of discrimination under the ADA. C. We turn next to Plaintiffs retaliation claim. The analytical framework pronounced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), guides our review of this claim. Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997). Under that framework, Plaintiff must establish a prima facie case of retaliation. Id. Once the Plaintiff establishes a prima facie case, the burden shifts to Defendant to come forward with a non-discriminatory reason for its employment decision. Id. If the employer presents a non-discriminatory reason for its decision, the burden shifts back to the Plaintiff to show that “there is a genuine issue of material fact as to whether the employer’s profered reason for the challenged action is pretextual, i.e., unworthy of belief.” Id. In considering Plaintiffs retaliation claim, the district court determined that Plaintiff made a prima facie case based on the temporal proximity of her termination to her EEOC and ADA complaints. In response to the prima facie showing, Defendant presented evidence showing that it terminated Plaintiff because she was not qualified for her position. The district court found that Plaintiff failed to show that Defendant’s proffered reason for terminating her was pretexual. Thus, the district court granted Defendant’s motion for summary judgment. Defendant urges us to uphold the grant of summary judgment on the grounds that, contrary to the district court’s finding, Plaintiff failed to prove a prima facie case of retaliation. In order to establish a prima facie case, Plaintiff must show: 1) she engaged in a protected activity; 2) she was subjected to adverse employment action subsequent to or contemporaneous with the protected activity; and 3) a causal connection between the protected activity and the adverse employment action. Morgan, 108 F.3d at 1324. By filing an EEOC claim, Plaintiff engaged in protected activity. McCue v. State of Kansas, 165 F.3d 784, 789 (10th" }, { "docid": "12434136", "title": "", "text": "protected if she opposes a discriminatory employment action or has made a charge, testified, assisted or participated in any investigation, proceeding, or hearing concerning discriminatory employment practices. 42 U.S.C.2000e-3a. Courts distinguish between different types of protected activities. Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1312-13 (6th Cir.1989). Activities such as filing an EEOC claim fall under the “participation” clause of Title VII. Id. Plaintiffs activity in this case falls under the “opposition” clause of Title VII because, as Tectum points out, she had not actually filed a complaint with the EEOC before she was fired. Although Title VII provides greater protection for “participation” than for “opposition”- in retaliation cases, Plaintiffs grievance made with Tectum officers is protected activity. Tectum was clearly aware of the complaint of sexual harassment made by the Plaintiff. Plaintiff was terminated approximately eleven days after she made her complaint and three days after she requested to be transferred to another department. It is undisputed that ultimate employment actions such as termination are considered adverse employment actions for the purposes of Title VII retaliation claims. Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir.1997). In order to successfully establish a. retaliation claim, Plaintiff must prove a .causal connection between her complaint and her termination. The only evidence -Plaintiff puts forth supporting a causal connection is the temporal relationship between her request for a transfer and the date of her termination. A causal link may be proven through evidence that an adverse employment action came right after the employee engaged in a protected activity. Canitia v. Yellow Freight System, Inc., 903 F.2d 1064 (6th Cir.1990). At this juncture, the Court concludes that Plaintiff has established a prima facie case of unlawful retaliation based solely on the temporal proximity of her discharge to her complaint of sexual harassment. In response to Plaintiffs showing of a causal connection, Tectum offers evidence of legitimate business reasons for terminating her employment, ie., Plaintiffs alleged failure to adequately manage leads and bounce back cards; Plaintiffs alleged discussion of bonus checks with other employees against company policy; and" }, { "docid": "10238512", "title": "", "text": "on his low ranking (which was in turn based on his poor performance). See Dockter, 913 F.2d at 461 (finding no quid pro quo sexual harassment where employee was terminated because of inability to become proficient as an operator of IBM personal computer). Plaintiff has come forward with no other evidence to suggest that his refusal to submit to Smith’s sexual demands was the real reason for the adverse employment actions. Rather, plaintiff merely states that “[w]hen he declined [Smith’s advances], he suffered adverse employment consequences.” While the court recognizes the temporal correlation between these events, such a correlation is not enough to show that Ameritech Cellular’s reasons were pretextual. F. Retaliation Lacy also argues that Smith denied him promotions and terminated him in retaliation for complaining about Smith’s racial and sex discrimination and sexual harassment. Ameritech Cellular argues that sum-, mary judgment is warranted on these claims because Lacy cannot establish a causal connection between any statutorily protected activity and not being promoted and/or being terminated. Furthermore, defendant argues that Lacy cannot establish that defendant’s articulated reasons for denying him promotions or terminating him were pretextual. The plaintiff proves a prima facie case of retaliation by demonstrating that: 1) he engaged in statutorily protected activity; 2) he suffered an adverse action; and 3) there is a causal link between the protected activity and the adverse action. Essex v. United Parcel Serv., 111 F.3d 1304, 1309 (7th Cir.1997). The court finds that Lacy has established a prima facie case of retaliation. Specifically, the court finds that Lacy has demonstrated an inference of a causal connection between his protected activity and an adverse employment action. Lacy began complaining of discriinination in the summer of 1992. Shortly thereafter, Smith and Lacy’s supervisor (Riordan) were in a position to make decisions affecting Lacy’s employment. Again, however, Ameritech Cellular’s non-diseriminatory reasons for terminating Lacy, and Lacy’s inability to establish pretext, warrant granting summary judgment on Lacy’s retaliation claim. See supra discussions in Sections B-E. Lacy’s subjective belief that his termination was retaliatory and that the claimed reasons were pretext does not alone create a" }, { "docid": "2192811", "title": "", "text": "Atmore, 996 F.2d 1155, 1163 (11th Cir.1993). To satisfy the causal connection requirement, Plaintiff must show that his supervisors were actually aware of the protected expression at the time they allegedly took the adverse employment action. See Goldsmith, 996 F.2d at 1163; Strickland v. Water Works and Sewer Bd. of the City of Birmingham, 2001 WL 50433 at * 6 (11th Cir.2001). Once Plaintiff establishes a prima facie case, Defendant must proffer a legitimate, non-discriminatory reason for the adverse employment action. See EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1571-72 (11th Cir.1993). If Defendant offers legitimate reasons for the employment action, Plaintiff must then demonstrate that Defendant’s proffered explanation is a pretext for retaliation. See Goldsmith, 996 F.2d at 1163. 2. The Prima Facie Case Plaintiff alleges that his discharge was in retaliation for three complaints of discrimination. The first took place in later 1996 or early 1997, around the time Gaston received his annual review, and was a complaint that he had not received his mid-year evaluation (which is non-pay related) in October 1996 from McDevitt. The second was a complaint made to Campbell sometime in 1997 about the different standards for Blacks, unequal pay, discipline, and appraisals, and failure of McDevitt to provide the October 1997 midyear review. The third was a complaint made to Smith sometime in 1997 about Smith’s February 1997 evaluation and unequal treatment. The adverse action is alleged to be Plaintiffs discharge on July 22, 1997. According to Plaintiff, the proximity in time between his complaints and the May 8, 1997 Adverse Performance Notice and July 22, 1997 termination should be sufficient to constitute evidence of a causal connection. Even if it is assumed that Plaintiffs three complaints constituted statutorily protected actions and that Plaintiffs discharge was an adverse employment action, thus satisfying the first two prongs of the prima facie case, Plaintiff has failed to sufficiently establish the third prong: a causal connection. First, the causal connection is severed by the multiple com plaints received by Defendants about Plaintiffs treatment of employees, which occurred both before and after Plaintiffs alleged complaints about" }, { "docid": "21438609", "title": "", "text": "plaintiffs claim under N.Y. Executive Law § 296(7) which provides: “It shall be an unlawful discriminatory practice for any person engaged in any activity to which this section applies to retaliate or discriminate against any person because he has opposed any practices forbidden under this article or because he has filed a complaint, testified or assisted in any proceeding under this article.” Defendant asserts that plaintiff has failed to allege that she suffered an adverse employment action or a causal connection between the acts alleged and her complaint to Markowitz. The Court applies the same analysis to retaliation claims under the Human Rights Law as in federal employment cases under Title VII. See Hendler v. Intelecom USA, Inc., 963 F.Supp. 200, 212 (E.D.N.Y. 1997). “To establish a prima facie case of unlawful retaliation, a plaintiff must show: (1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action.” Torres, 116 F.3d at 639 (quoting Tomka, 66 F.3d at 1308). Plaintiff sufficiently alleges the first element, in that she notified defendant Markowitz in or about September 1994 that a male eoworker was harassing her (Pl. ComplY 22), and that the defendant Markowitz’ actions at trade shows was unwelcome, revolting and repugnant (Pl.Compl^ 26), and on or about January 11, 1995 Ms. Stordeur again met with, defendant Markowitz to discuss the discriminatory practices. (Pl. Compl. ¶ 29). The treatment arising as a result of her protected activity of complaining to her supervisor of the discriminatory conduct, as alleged, including being threatened with termination if she complained to the Senior Vice President and ordering plaintiff to perform menial tasks (Pl.Compl^ 29) satisfies the second element of a conduct of an employment action disadvantaging the plaintiff. See Torres, 116 F.3d at 640 (indicating that veiled suggestions that failurfe to comply would lead to termination, discipline, or unpleasant assignments might affect an employee’s working conditions sufficient to satisfy the “material adverse change in the terms and conditions of employment” standard). To establish a causal connection," }, { "docid": "21438610", "title": "", "text": "66 F.3d at 1308). Plaintiff sufficiently alleges the first element, in that she notified defendant Markowitz in or about September 1994 that a male eoworker was harassing her (Pl. ComplY 22), and that the defendant Markowitz’ actions at trade shows was unwelcome, revolting and repugnant (Pl.Compl^ 26), and on or about January 11, 1995 Ms. Stordeur again met with, defendant Markowitz to discuss the discriminatory practices. (Pl. Compl. ¶ 29). The treatment arising as a result of her protected activity of complaining to her supervisor of the discriminatory conduct, as alleged, including being threatened with termination if she complained to the Senior Vice President and ordering plaintiff to perform menial tasks (Pl.Compl^ 29) satisfies the second element of a conduct of an employment action disadvantaging the plaintiff. See Torres, 116 F.3d at 640 (indicating that veiled suggestions that failurfe to comply would lead to termination, discipline, or unpleasant assignments might affect an employee’s working conditions sufficient to satisfy the “material adverse change in the terms and conditions of employment” standard). To establish a causal connection, a plaintiff may either show indirectly that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence or retaliatory animus directed against a plaintiff by defendants. See Johnson v. Palma, 931 F.2d 203, 207 (2d Cir.1991). The nexus between Stordeur’s reporting the harassment to Markowitz and Markowitz’ threat of termination if Stordeur were to report the harassment to the Senior Vice President is clear, direct and self-evident. Accordingly, the defendant Markowitz’ motion to dismiss the plaintiff’s claim for retaliation pursuant to N.Y. Executive Law § 296(7) is denied. CONCLUSION For all the aforementioned reasons, plaintiffs state law intentional tort claims for intentional infliction of emotional distress, slander and slander per se,as well as plaintiffs claims for reckless infliction of emotional distress, negligent hiring, supervision and investigation, denominated as causes of action six, seven and eight of plaintiffs complaint are hereby dismissed. Plaintiffs claims pursuant to N.Y. Executive Law §§ 296(a)(1), 296(6) and 296(7), denominated as cause" }, { "docid": "18859476", "title": "", "text": "of the business decision to implement or to rescind the policy but reviews whether, in fact, the policy was implemented with discriminatory intent. Proof of discrimination is the plaintiffs’ burden. They have failed to prove discriminatory intent. Affidavits submitted by the bank in support of their motion for summary judgment provide employees’ and supervisors’ statements describing the tense working environment created by the actions of the plaintiffs. This tension arguably existed during work hours and on breaks. The English-only policy was implemented to alleviate the tension at the worksite. DISCHARGE IN RETALIATION FOR FILING DISCRIMINATION COMPLAINTS Plaintiffs Long and Baeza allege that they were discrixninatorily discharged in violation of Title VII. Plaintiff Long alleges that her discharge was the result of retaliation for filing EEOC and Virginia Human Rights Commission (“VHRC”) charges and because of her national origin. Plaintiff Baeza alleges that although she voluntarily quit her position, this termination constituted a constructive discharge because her supervisor allegedly refused to alter her work schedule to accommodate her school schedule. To support a claim for discriminatory discharge, plaintiff must show: (1) that she is a member of a protected class, (2) that she was discharged, (3) that, at the time of the discharge, she was performing at a satisfactory level, and (4) that she was replaced with someone of comparable qualifications who is a person outside of her protected class. EEOC v. Western Electric Co., Inc., 713 F.2d 1011, 1014 (4th Cir.1983); see also, Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994). Plaintiff Long has not satisfied the third prong of the test as there is sufficient evidence to conclude she was terminated for insubordination. The defendant has submitted affidavits that Long was discharged for an incident of insubordination occurring on or about August 18,1993. Plaintiff Long has not provided evidence sufficient to overcome this conclusion. To support her claim for retaliatory discharge, plaintiff Long must show (1) that she engaged in a protected activity, (2) that the employer took adverse employment action against her, and (3) that a causal connection existed between the protected activity and the adverse" }, { "docid": "23103108", "title": "", "text": "of her and others at a meeting on February 24, 2003 with Commissioner Bode. At the summary judgment stage, we must draw all inferences in her favor, and we have noted that “[protected opposition can range from filing formal charges to voicing informal complaints to superiors.” Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir.2004). Thus, her complaint unquestionably constitutes protected activity. Second, Ms. Fye has presented evidence sufficient to establish a causal connection between this protected activity and her termination, which is clearly an adverse employment action. For purposes of establishing a prima facie case of retaliation, a plaintiff can establish a causal connection by temporal proximity between the protected activity and adverse action. See Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1228 (10th Cir.2006) (stating that a plaintiff can establish a causal connection by presenting evidence that “protected conduct [was] closely followed by adverse action”). On February 28, 2003, Ms. Fye informed Mr. Daxon that she had discussed his actions with Commissioner Bode. The close temporal proximity between Ms. Fye’s meeting with Commissioner Bode and her termination — less than two weeks — is alone sufficient to establish a causal connection between her protected activity and termination. See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir.2006) (holding that twenty-four days is sufficient to infer existence of causal connection). Because Ms. Fye has satisfied her burden to establish a prima facie case of retaliation, the OCC must proffer a legitimate, nondiscriminatory reason for her termination. Establishing a legitimate, nondiscriminatory reason is a burden of production and “can involve no credibility assessment.” See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quotation omitted). The OCC contends that it terminated Ms. Fye based on the demands set forth in her March 4 letter, which ultimately caused Mr. Daxon to lose confidence in her ability to work closely with Mr. Musser and himself at a time when it was critical that there be a “spirit of cooperation and team work, particularly" }, { "docid": "23103107", "title": "", "text": "of the agency. We agree with the District Court that the letter “does not contain verbiage from which a reasonable inference of ... retaliatory animus[ ] may be drawn.” 2. Pretext Theory of Retaliation Ms. Fye can also prove her retaliation claim indirectly, invoking the McDonnell Douglas framework. Under this familiar framework, Ms. Fye must first establish a prima facie case of retaliation by showing “(1) she engaged in protected opposition to Title VII discrimination; (2) she suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse employment action.” Meiners v. Univ. of Kan., 359 F.3d 1222, 1229 (10th Cir.2004). If Ms. Fye makes the prima facie showing, the OCC must proffer a legitimate, nondiscriminatory reason for her termination. Id. Ms. Fye then has the burden of demonstrating that the OCC’s asserted reasons for her termination are pretextual. Id. Ms. Fye has presented evidence sufficient to create a prima facie case of retaliation. First, Ms. Fye contends that she complained of Mr. Daxon’s alleged sexual harassment of her and others at a meeting on February 24, 2003 with Commissioner Bode. At the summary judgment stage, we must draw all inferences in her favor, and we have noted that “[protected opposition can range from filing formal charges to voicing informal complaints to superiors.” Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir.2004). Thus, her complaint unquestionably constitutes protected activity. Second, Ms. Fye has presented evidence sufficient to establish a causal connection between this protected activity and her termination, which is clearly an adverse employment action. For purposes of establishing a prima facie case of retaliation, a plaintiff can establish a causal connection by temporal proximity between the protected activity and adverse action. See Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1228 (10th Cir.2006) (stating that a plaintiff can establish a causal connection by presenting evidence that “protected conduct [was] closely followed by adverse action”). On February 28, 2003, Ms. Fye informed Mr. Daxon that she had discussed his actions with Commissioner Bode. The close temporal proximity between Ms." }, { "docid": "12949739", "title": "", "text": "discrimination cases applies to Plaintiffs’ retaliation claims under Title VII. See Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 94 (2d Cir.), cert. denied, 534 U.S. 951, 122 S.Ct. 348, 151 L.Ed.2d 263 (2001). First, Plaintiffs must establish a prima facie case of retaliation by showing that (1) they were engaged in a protected activity under Title VII; (2) the employer was aware of Plaintiffs’ participation in the protected activity; (3) Plaintiffs were subjected to an adverse employment action; and (4) there is a nexus between the protected activity and the adverse employment action. Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465 (2d Cir.1997) (citations omitted). The burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Slattery, 248 F.3d at 94. If the Defendant meets this burden, Plaintiffs have the opportunity to prove that the proffered reasons are a pretext for retaliatory action. Id. It is undisputed that Plaintiffs satisfied elements two and four of their pri-ma facie case of retaliation. However, the Court finds that they have not raised a material issue of fact with respect to elements one and three. First, with respect to protected behavior, although Maria may have complained about certain comments and threats directed towards her by Ms. Black, she has failed to present evidence that her “complaint” was based on her belief that she was being discriminated against (or harassed) on account of her race. Rather, as set forth above, the un disputed evidence demonstrates that Maria (and Gregory) believed that Ms. Black’s conduct arose out of her failed relationship with Gregory. Similarly, Gregory’s May 9, 2001 “complaint” of “harassment” focused solely on Ms. Black’s behavior which was directed against him because of the failed relationship, and not because of Gregory’s gender. (Kiley Aff. Exh. K). Indeed, Gregory did not use the terms “race” or “sex” in his “complaint.” (Id.). Second, other than a temporal nexus, Plaintiffs have not proffered any evidence linking their purported “complaints” to the School’s decision to terminate them. While it is, of course, true that temporal proximity can demonstrate" }, { "docid": "2192813", "title": "", "text": "discriminatory treatment. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.1999) (stating that intervening unprotected conduct, such as violating an employer’s rules or disrupting the workplace, can “erode[ ] any causal connection that was suggested by the temporal proximity of [the] protected conduct and [the] termination.”). Second, Plaintiffs only argument for establishing a causal connection, the temporal proximity of the protected actions and the discharge, is not persuasive given the gap in time between the complaints, which were in approximately February 1997, and the May 1997 disciplinary notice and July 1997 termination. See Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.1997) (holding that a “three-month period between the [protected] activity and termination, standing alone, does not establish a causal connection”). 3. Legitimate, Nondiscriminatory Reasons and Pretext Even if it is assumed that Plaintiff could establish a prima facie case of retaliation, Home Depot has proffered a legitimate, nondiscriminatory reason for the May 1997 disciplinary warning and July 1997 termination based on its receipt of employee complaints of mistreatment and disrespect, including additional complaints after Gaston was given a warning that further problems could result in termination. See Willis v. Conopco, Inc., 108 F.3d 282, 287 (11th Cir.1997). Thus the burden shifts to the Plaintiff to establish that the Defendant’s reason is pretext for discrimination, and Plaintiff has failed to present any argument or evidence in this regard. Accordingly, summary judgment in favor of Defendant on Plaintiffs retaliation claim is warranted. F. Remaining Arguments Defendant argued in its motion for summary judgment that any hostile work environment claim, assuming there was one, would fail as a matter of law. However, Plaintiff conceded in his response that he has not and does not make a claim for hostile work environment, thereby mooting that issue. The parties also argued in each of their motions for summary judgment over the applicability of a mixed-motives or after-acquired evidence defense. In essence, the mixed-motives defense permits a Defendant to prevail in an employment discrimination case even if the plaintiff provides evidence that the defendant was motivated in part by an impermissible" } ]

[ { "docid": "12396249", "title": "", "text": "examination” under the Act, I will discuss only his remaining claim, i.e., the “public accommodation claim” under Title III of the . Act. - .' . Title III of the ADA provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. discrimination includes failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden. discrimination also includes the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages or accommodations, unless such criteria can be shown to be necessary' for the provision of the goods, services, facilities, privileges, -advantages, or accommodations being offered. 42 U.S.C. §§ 12182(a), 12182(b)(2)(A)© and (ii) The ADA was enacted by Congress in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Congress found that “individuals with disabilities continually encounter various forms of discrimination, including .,. failure to make modifications to existing facilities and practices ____” Congress intended to protect disabled persons not just from intentional discrimination but also from “thoughtlessness,” “indifference,” and “benign neglect.” See Crowder v. Kitagawa, 81 F.3d 1480, 1483-1484 (9th Cir.1996). ADA defines disability with respect to an individual as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). The phrase physical or mental impairment means: (i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the" } ]

[ { "docid": "15445025", "title": "", "text": "Cir.1976) (“[T]he order requiring that the parties meet and negotiate a plan complying with the decision is itself a mandatory injunction which is appealable under 28 U.S.C. § 1292(a)(1).” (citing Braxton )), rev’d on other grounds, 430 U.S. 322, 97 S.Ct. 1189, 51 L.Ed.2d 368 (1977). IV. STANDARDS OF PROOF UNDER THE AMERICANS WITH DISABILITIES ACT Title III of the ADA, which applies to public accommodations, establishes the general rule that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). The ADA then defines discrimination to include a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations. Id. § 12182(b) (2)(A) (ii). The central issue for us to address in this case is the allocation of the burdens of proof in a “reasonable modifications” case under Title III. Because no Fifth Circuit case sets forth these burdens in the context of Title III, we will look to the more fully developed case law under Title I of the ADA, which prohibits disability discrimination in employment. See id. § 12112. In Riel v. Electronic Data Sys. Corp., 99 F.3d 678 (5th Cir.1996), the plaintiff brought suit under the ADA after he was fired for repeatedly failing to meet milestone deadlines on projects. Id. at 681. He claimed that his failure to meet those deadlines was caused by his disability, which was fatigue attributed to renal failure and diabetes, and he requested accommodations. Id. at 680-81. The district court granted summary judgment for the employer, in part by concluding that the plaintiffs requested accommodations were not reasonable. Id. at 680. We reversed and remanded. Id. Title" }, { "docid": "8173620", "title": "", "text": "Cir.1998) (applying Title III to a private podiatric college). The Rehabilitation Act precludes federal grantees from excluding, denying benefits to, or discriminating against any “otherwise qualified individual ... solely by reason of her or his disability.” 29 U.S.C. § 794(a). Title III of the ADA provides, in relevant part, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a). This section goes on to define “discrimination” as including “a failure to make reasonable modifications” that are “necessary” to provide a disabled individual with such full and equal enjoyment, “unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.” Id. § 12182(b)(2)(A)(ii). To the extent possible, we construe the ADA and Rehabilitation Act to impose similar requirements. See Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 214 (4th Cir.2002); Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 57 (4th Cir.1995). Thus, despite the different language these statutes employ, they require a plaintiff to demonstrate the same elements to establish liability. See Bowers v. NCAA, 475 F.3d 524, 535 n. 12 (3d Cir.2007) (examining claims under the Rehabilitation Act and Titles II and III of the ADA). In the context of a student excluded from an educational program, to prove a violation of either Act, the plaintiff must establish that (1) he has a disability, (2) he is otherwise qualified to participate in the defendant’s program, and (3) he was excluded from the program on the basis of his disability. See Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir.2005) (applying the Rehabilitation Act and Title II of the ADA); see also Kaltenberger, 162 F.3d at 435 (applying the Rehabilitation Act and Title III of the ADA). The two statutes differ only with respect to the third element, causation. To succeed on a claim under the Rehabilitation Act, the plaintiff must" }, { "docid": "23178340", "title": "", "text": "Metro. Transp. Dist., 254 F.3d 846, 849 (9th Cir.2001) (citing Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995)). Summary judgment is appropriate “if the pleadings, depositions, answers to inter rogatories, 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). Our task is to “determine whether the evidence, viewed in a light most favorable to the non-moving party, presents any genuine issues of material fact and whether the district court correctly applied the law.” Warren, 58 F.3d at 441. DISCUSSION “Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001). The Act responds to what Congress described as a “compelling need” for a “clear and comprehensive national mandate” to eliminate discrimination against disabled individuals. Id. at 675, 121 S.Ct. 1879. “To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act), public services (Title II), and public accommodations (Title III).” Id. (internal citations omitted). Title III of the ADA prohibits discrimination in public accommodations and establishes a “general rule” that: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). The ADA defines discrimination to include: [A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities,' privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations .... Id. § 12182(b)(2)(A)(ii). Title III also prohibits places of public accommodation" }, { "docid": "15445026", "title": "", "text": "such goods, services, facilities, privileges, advantages, or accommodations. Id. § 12182(b) (2)(A) (ii). The central issue for us to address in this case is the allocation of the burdens of proof in a “reasonable modifications” case under Title III. Because no Fifth Circuit case sets forth these burdens in the context of Title III, we will look to the more fully developed case law under Title I of the ADA, which prohibits disability discrimination in employment. See id. § 12112. In Riel v. Electronic Data Sys. Corp., 99 F.3d 678 (5th Cir.1996), the plaintiff brought suit under the ADA after he was fired for repeatedly failing to meet milestone deadlines on projects. Id. at 681. He claimed that his failure to meet those deadlines was caused by his disability, which was fatigue attributed to renal failure and diabetes, and he requested accommodations. Id. at 680-81. The district court granted summary judgment for the employer, in part by concluding that the plaintiffs requested accommodations were not reasonable. Id. at 680. We reversed and remanded. Id. Title I of the ADA provides that discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability ... unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business.” 42 U.S.C. § 12112(b)(5)(A). The Riel court noted that the statutory language, by requiring a reasonable accommodation unless the employer “can demonstrate” undue hardship, clearly placed the burden of proof with respect to undue hardship on the employer. 99 F.3d at 682. As to the burden of proving the reasonableness of the accommodation, the court noted that “[i]n contrast, discrimination is defined to be a ‘failure to implement reasonable accommodations,’ suggesting that the plaintiff bears the burden of proof on that issue.” Id. The court went on to describe the substance of these burdens: “[A] reasonable accommodation is ‘a method of accommodation that is reasonable in the run of cases, whereas the undue hardship inquiry focuses on the hardships imposed by the plaintiffs preferred accommodation in the context" }, { "docid": "5438089", "title": "", "text": "(“[P]ublic entities cannot use eligibility criteria that screen out or tend to screen out individuals with disabilities unless they can show that the criteria are necessary.”). Similarly, sections 12182(b)(2)(A)(ii) and (iii) provide an affirmative defense for an entity to demonstrate that compliance would fundamentally alter the nature of the goods and services provided. Consequently, the entity bears the burden of persuasion regarding fundamental alteration and undue burden. See Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1059 (5th Cir.1997) (under subsection (ii) modification claim, defendant bears “burden of proving that the requested modification would fundamentally alter the nature of the public accommodation”); Mayberry v. Von Valtier, 843 F.Supp. 1160, 1166 (E.D.Mich.1994) (shifting burden of proof to defendant in subsection (iii) ease). In Johnson, 116 F.3d at 1059, the Fifth Circuit addressed the burden of proof in a § 12182(b)(2)(A)(ii) reasonable modifica tion claim. The court held that the plaintiff bears the burden of proving that a modification was requested and that the requested modification was reasonable. Id. Once the plaintiff meets the burden of showing that an accommodation is reasonable in the general sense, the court held the defendant must make the requested accommodation unless defendant pleads and meets its burden of proving that the requested accommodation would fundamentally alter the nature of the public accommodation. Id. The plaintiff bears the ultimate burden of proof on the issue of reasonableness, while the defendant bears the burden of proving the requested accommodation would fundamentally alter the nature of the public accommodation. Id. Several district courts have adopted Johnson’s allocation of the burden of proof in subsection (ii) cases. See Dahlberg v. Avis Rent A Car Sys., Inc., 92 F.Supp.2d 1091, 1105-06 (D.Colo.2000) (adopting Johnson); Bingham v. Oregon Sch. Activities Ass’n, 24 F.Supp.2d 1110, 1116-17 (D.Or.1998) (under subsection (ii), “[o]nce plaintiff establishes that the requested accommodation is reasonable in a general sense, the burden shifts to the defendant to prove that the modification is unreasonable under the circumstances, that such would fundamentally alter the nature of the public accommodation or otherwise work an undue hardship on the entity.”). Our conclusion that Congress" }, { "docid": "14471853", "title": "", "text": "Liberty Lobby, Inc. 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). III. DISCUSSION A. The Title III “Reasonable Modification” Framework Title III of the ADA was designed to provide disabled persons with meaningful access to places of public accommodation. To this end, Title III requires places of public accommodation to make “reasonable modifications” to their policies, practices or procedures when such modifications are necessary to afford individuals with disabilities the goods, services, facilities, privileges, advantages or accommodations being offered, unless doing so would fundamentally alter the nature of the goods or services so offered. See 42 U.S.C. § 12182(b)(2)(A)(ii). In order to prevail under Title III of the ADA, a plaintiff generally has the burden of proving: 1) that he or she is an individual with a disability; 2) that defendant is a place of public accommodation; and 3) that defendant denied him or her full and equal enjoyment of the goods, services, facilities or privileges offered by defendant on the basis of his or her disability. Access Now, Inc. v. South Fla. Stadium Corp., 161 F.Supp.2d 1357, 1363 (S.D.Fla.2001); Tugg v. Towey, 864 F.Supp. 1201, 1205 (S.D.Fla.1994). The Supreme Court has emphasized that in considering a “reasonable modification” claim, “an individualized inquiry must be made to determine whether a specific modification for a particular person’s disability would be reasonable under the circumstances as well as necessary for that person, and yet at the same time not work a fundamental alteration.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 688, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001). A plaintiff who alleges that a defendant failed to reasonably modify its policies, practices or procedures must show that he or she actually requested a modification that was necessary for full and equal enjoyment and that such a modification is reasonable in the run of cases. Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1058-60 (5th Cir.1997). If the plaintiff makes such a showing, the burden then shifts to the defendant to offer rebuttal evidence that the modification is not reasonable in the run of cases. As part of this" }, { "docid": "15445030", "title": "", "text": "of material fact. Id. While Riel was a Title I reasonable accommodations case, its analysis is easily transferrable to the Title III reasonable modifications context. The language of both provisions is very similar: Title I defines discrimination to include “not maMng reasonable accommodations ... unless [the defendant] can demonstrate that the accommodation would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A). Title III defines discrimination to include “a failure to make reasonable modifications ... unless the entity can demonstrate that making such modifications would fundamentally alter the nature of [the public accommodation].” Id. § 12182(b)(2)(A)(ii). In light of the statutes’ parallel language, we find no basis for distinguishing their respective burdens of proof. While Title I provides an undue hardship defense and Title III provides a fundamental alteration defense, fundamental alteration is merely a particular type of undue hardship. See 29 C.F.R. pt. 1630 app., § 1630.2(p). Consequently, while the scope of the affirmative defense under Title III is more narrow than that provided by Title I, the type of proof — that is, proof focusing on the specific circumstances rather than on reasonableness in general — is the same. Applying the Riel framework to the Title III reasonable modifications context yields the following allocation of burdens of proof. The plaintiff, has the burden of proving that a modification was requested and that the requested modification is reasonable. The plaintiff meets this burden by introducing evidence that the requested modification is reasonable in the general sense, that is, reasonable in the run of cases. While the defendant may introduce evidence indicating that the plaintiffs requested modification is not reasonable in the run of cases, the plaintiff bears the ultimate burden of proof on the issue. See also Staron v. McDonald’s Corp., 51 F.3d 353 (2d Cir.1995) (reversing the district court’s Rule 12(b)(6) dismissal of Title III suit based on district court’s determination that plaintiffs’ requested accommodations are not reasonable as a matter of law and remanding to give plaintiffs the opportunity to prove that the requested accommodations are reasonable). If the plaintiff meets this burden, the defendant must make the" }, { "docid": "15878131", "title": "", "text": "see 42 U.S.C. § 12101(a)-(b) (containing the congressional findings and purpose for the ADA). Consistent with this goal, the Act contains the following broad statement: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages,, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). Title III defines discrimination to include “a failure to make reasonable modifications ... unless the entity can demonstrate that making such modifications would fundamentally alter the nature of [the public accommodation].” 42 U.S.C. § 12182(b)(2)(A) To state a claim under Title III, a plaintiff must allege (1) he is disabled within the- meaning of the ADA; (2) the defendant is a private- entity that owns, leases, or. operates a place of public accommodation; and (3) the defendant denied the plaintiff public accommodations because .of his disability. 42 U.S.C. §§ 12182(a)-(b); see Arizona ex rel. Goddard v. Harkins Amusement Enterprises, Inc., 603 F.3d 666, 670 (9th Cir.2010); Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir.2008). To establish Article III standing, a plaintiff must demonstrate that he has suffered an injury in fact, that the injury is traceable to the defendant’s challenged conduct, and - that the injury can be redressed by a favorable decision. Norkunas v. Park Rd. Shopping Ctr., Inc., 777 F.Supp.2d 998, 1001 (W.D.N.C.2011) (case involving the ADA), aff'd, 474 Fed.Appx. 369 (4th Cir.2012). Monetary damages are not available under Title III, but injunctive relief is available. Gregory v. Otac, Inc., 247 F.Supp.2d 764, 770 (D.Md.2003). To have standing to obtain injunctive relief, a plaintiff must “demonstrate a likelihood that he will suffer future discrimination at the hands of the defendant.” Id. Plaintiff alleges Defendants violated the following subsections of 42 U.S.C. § 12182: (1) § 12182(b)(1)(A)(i), by denying him the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity; (2) § 12182(b)(1)(A)(ii), by denying Plaintiff, on the basis of his" }, { "docid": "15516378", "title": "", "text": "alterations to existing facilities. Failure to abide by the Guidelines in new construction evidences intentional discrimination against disabled persons. See Association for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F.Supp.2d 1353, 1362 n. 5 (S.D.Fla.2001). The Act imposes a less rigorous standard of compliance on “existing facilities,” constructed before its enactment on January 26, 1993. Concorde, 158 F.Supp.2d at 1362. “The compromise Title III makes is to require only reasonable modifications and readily achievable barrier removals or alternative methods, when the disabled are subjected to de facto discrimination in places of public accommodation.” Concorde, 158 F.Supp.2d at 1362. The parties agree that because the Stadi- urn predates the ADA, its obligation to comply with the ADA is governed by the “readily achievable” standard. Plaintiffs’ prima facie case depends on Resnick’s ability to show the following: 1) that he is disabled; 2) that the Stadium is a place of public accommodation; and 3) that he was denied full and equal treatment because of his disability. See Tugg v. Towey, 864 F.Supp. 1201, 1205 (S.D.Fla.1994); see also Parr v. L & L Drive-Inn Restaurant, 96 F.Supp.2d 1065, 1085 (D.Haw.2000). Because his claim alleges discrimination due to. an architectural barrier, Plaintiff must further show that the existing facility presents an architectural barrier that is prohibited under the ADA, the removal of which is readily achievable. Colorado Cross Disability Coalition v. Hermanson Family L.P., 264 F.3d 999 (10th Cir.2001); Parr, 96 F.Supp.2d at 1085. If Plaintiff makes this initial showing, Defendants have the opportunity to rebut Plaintiffs case by showing that removal of the disputed barrier could not be accomplished without much difficulty or expense. Parr, 96 F.Supp.2d at 1085; Pascuiti v. New York Yankees, No. 98 CIV. 8189(SAS), 1999 WL 1102748, at *5 (S.D.N.Y. Dec.6, 1999). The analytical framework set forth in Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052 (5th Cir.1997), has been adopted by this District, and provides: The plaintiff has the burden of proving that a modification was requested and that the requested modification is reasonable. The plaintiff meets this burden by introducing evidence that the requested modification is" }, { "docid": "4349955", "title": "", "text": "of public accommodations “to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, [or] facilities ... to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, ... or accommodations.... ” 42 U.S.C. § 12182(b)(2)(A)(ii). While the “fundamentally alter” concept originated in the Supreme Court’s discussion of the reasonableness of an accommodation under the Rehabilitation Act in Southeastern Community College v. Davis, 442 U.S. 397, 410, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), “fundamentally alter” is now part of the statutory language of the ADA. See 42 U.S.C. § 12182(b)(2)(A)(ii). Rehabilitation Act reasonable accommodations case analysis “is easily transferrable to the Title III[ADA] reasonable modifications context.” Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052, 1059 (5th Cir.1997). Very similar language is found in both provisions. The Rehabilitation Act defines discrimination to include “not making reasonable accommodations ... unless [the defendant] can demonstrate that the accommodation would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A). The ADA defines discrimination to include “a failure to make reasonable modifications ... unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations....” 42 U.S.C. § 12182(b)(2)(A)(ii). The Rehabilitation Act provides an undue hardship defense; the ADA provides a fundamental alteration defense, with fundamental alteration merely a particular type of undue hardship. See Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d at 1059; see also 29 C.F.R. pt. 1630, app. § 1630.2(p) (1998). An ADA plaintiff bears the burden of proving that the requested modification is reasonable in the general sense. See Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d at 1059; Crowder v. Kitagawa, 81 F.3d 1480, 1486 (9th Cir.1996); Staron v. McDonald’s Corp., 51 F.3d 353, 356 (2d Cir.1995). The USGA does not appear to challenge the reasonableness of Mr. Olinger’s requested accommodation in a general sense, and the golf cart has become so ubiquitous in the sport that any such challenge would seem doomed. The game of golf does not forbid the" }, { "docid": "15445029", "title": "", "text": "a position without milestone deadlines or by adjusting the deadlines for him. Id. at 683. The employer argued that relaxing the milestone deadlines would disrupt its work structure. Id. The court concluded that there was a fact issue on that question and accordingly determined that summary judgment was inappropriate. Id. The employer also argued that its internal polices would not allow it to transfer the plaintiff because the plaintiff had received ratings of “below average” as a result of missing milestone deadlines. Id. The court concluded that this evidence focused upon the plaintiffs specific circumstances and thus could not be used to rebut the plaintiffs showing of an accommodation reasonable in the run of cases, but instead was relevant only to meeting the employer’s burden of showing undue hardship. Id. at 683-84. The employer, however, did not plead undue hardship, which is an affirmative defense. Id. at 684. The employer’s evidence therefore was not sufficient to show that it was entitled to judgment as a matter of law and that there were no genuine issues of material fact. Id. While Riel was a Title I reasonable accommodations case, its analysis is easily transferrable to the Title III reasonable modifications context. The language of both provisions is very similar: Title I defines discrimination to include “not maMng reasonable accommodations ... unless [the defendant] can demonstrate that the accommodation would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A). Title III defines discrimination to include “a failure to make reasonable modifications ... unless the entity can demonstrate that making such modifications would fundamentally alter the nature of [the public accommodation].” Id. § 12182(b)(2)(A)(ii). In light of the statutes’ parallel language, we find no basis for distinguishing their respective burdens of proof. While Title I provides an undue hardship defense and Title III provides a fundamental alteration defense, fundamental alteration is merely a particular type of undue hardship. See 29 C.F.R. pt. 1630 app., § 1630.2(p). Consequently, while the scope of the affirmative defense under Title III is more narrow than that provided by Title I, the type of proof — that is, proof" }, { "docid": "4349956", "title": "", "text": "ADA defines discrimination to include “a failure to make reasonable modifications ... unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations....” 42 U.S.C. § 12182(b)(2)(A)(ii). The Rehabilitation Act provides an undue hardship defense; the ADA provides a fundamental alteration defense, with fundamental alteration merely a particular type of undue hardship. See Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d at 1059; see also 29 C.F.R. pt. 1630, app. § 1630.2(p) (1998). An ADA plaintiff bears the burden of proving that the requested modification is reasonable in the general sense. See Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d at 1059; Crowder v. Kitagawa, 81 F.3d 1480, 1486 (9th Cir.1996); Staron v. McDonald’s Corp., 51 F.3d 353, 356 (2d Cir.1995). The USGA does not appear to challenge the reasonableness of Mr. Olinger’s requested accommodation in a general sense, and the golf cart has become so ubiquitous in the sport that any such challenge would seem doomed. The game of golf does not forbid the use of golf carts. The Rules of Golf, prepared by the USGA, acknowledge the potential involvement of golf carts: Section 1 (“Etiquette”) exhorts the golfer to observe strictly local notices regulating the movement of carts; Section II (“Definitions”) defines a golf cart and everything in it as the equipment of a player involved in its movement, and Rule 19 echoes that definition. The Rules of Golf recognize that a particular event or a particular course condition may require rules in addition to the generally applicable rules, so Rule 33 empowers a committee to make local rules, and Appendix I sets forth topics on which local rules might be advisable. One of those suggested rules relates to “Transportation,” and provides, “If it is desired to require players to walk in a competition, the following condition is suggested: Players shall walk at all times during a stipulated round.” The Appendix proposes a penalty of two strokes per hole, to a maximum of four strokes per round, and disqualification if the offending player does not discontinue the unauthorized" }, { "docid": "12883345", "title": "", "text": "he direct the cashier to do so. The store manager, Fossett, explained that once the customer had been declined, he would always back up his cashier by refusing to sell the customer alcohol, notwithstanding any subsequent evidence that the customer was disabled. Only in the “very, very unique” case in which a customer had alerted him to an intoxication-mimicking disability before attempting to purchase alcohol would Fossett reverse a cashier’s decision. {See Trial Trans, at 106-08 (Docket # 34).) II. DISCUSSION Plaintiff filed suit in this Court alleging violations of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (the “ADA” or the “Act”), and the Maine Human Rights Act, 5 M.R.S.A. § 4551 et seq. (the “MHRA”). Courts have interpreted the ADA and MHRA statutes as coextensive. See, e.g., Soileau v. Guilford of Maine, Inc., 928 F.Supp. 37, 45 (D.Me.1996); Caldwell v. Fed. Express Corp., 908 F.Supp. 29, 36 (D.Me.1995). Therefore, although the Court only addresses Plaintiffs claims pursuant to the ADA, its conclusions with regard to Defendant’s liability apply equally to Plaintiffs MHRA claim. The ADA prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a). “Discrimination” includes a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages or accommodations to individuals with disabilities .... Id. at § 12182(b)(2)(A)(ii). To recover on a claim for violation of section 12182, Plaintiff must show (1) that he is a person with a disability; (2) that Defendant is a public accommodation; (3) that he requested a reasonable modification of Defendant’s policy or procedures that was necessary to allow him access to the public accommodation as described in section 12182(b)(2)(A)(ii); and (4) that Defendant denied the requested modification. See Anderson v. Ross Stores, Inc., No. C 99-4056 CRB., 2000 WL 1585269 at *4 (N.D.Cal. Oct. 10, 2000). See also, Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052, 1058-60 (5th Cir.1997); Dahlberg" }, { "docid": "18198187", "title": "", "text": "be a church, and also contains statements made on information, belief and conjecture. Defendants also object that there is no foundation for the purported Wayne County real estate records, as the documents are not authenticated. As defendants observe, the complaint does not indicate under which aspect of the ADA Ms. Woods asserts her claim. The ADA consists of three titles addressing discrimination against the disabled in different contexts. “Title I prohibits employment discrimination, 42 U.S.C. § 12112, Title II prohibits discrimination in the services of public entities, 42 U.S.C. § 12132, and Title III prohibits discrimination by public accommodations involved in interstate commerce such as hotels, restaurants, and privately operated transportation services, 42 U.S.C. §§ 12182, 12184.” Gorman v. Bartch, 152 F.3d 907, 911 (8th Cir.1998). The Court agrees with defendants that Title III is the only potentially applicable section, as Ms. Woods does not claim that defendants discriminated against her in employment or that defendants are a public entity. Title III of the ADA prohibits any person who owns, leases, or operates a place of public accommodation from discriminating against an individual on the basis of that individual’s disability. See 42 U.S.C. § 12182(a) (1994). A person alleging discrimination under Title III must show that (1) she is disabled within the meaning of the ADA, (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation, (3) the defendant took adverse action against the plaintiff based upon her disability, and (4) the defendant failed to make reasonable modifications that would accommodate the plaintiffs disability without fundamentally altering the nature of the public accommodation. See 42 U.S.C. § 12182(a) and (b)(2)(A)(ii); Amir v. St. Louis University, 184 F.3d 1017, 1026 (8th Cir.1999). Title III by its terms does not apply to “religious organizations or entities controlled by religious organizations, including places of worship.” 42 U.S.C. § 12187; PGA Tour, Inc. v. Martin, 532 U.S. 661, 689 n. 51, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001) (noting that Congress “expressly exempted” religious organizations or entities from Title Ill’s coverage). 28 C.F.R. Pt. 36, App. B" }, { "docid": "19509282", "title": "", "text": "procedures, when [2] such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless [3] the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. § 12182(b)(2)(A)(ii). Also of note, although Congress here used the term \"reasonable modifications,\" it used the term \"reasonable accommodations\" elsewhere in the ADA without apparent distinction. While Titles II and III defined discrimination to include the failure to make \"reasonable modifications,\" id. §§ 12131(2), 12182(b)(2)(A)(ii), Title I, which applied to employers, defined \"discrimination\" to include \"not making reasonable accommodations,\" id. § 12112(b)(5)(A). See Robertson v. Las Animas Cty. Sheriff's Dep't , 500 F.3d 1185, 1195 n.8 (10th Cir. 2007) (observing that \"Title II's use of the term 'reasonable modifications' is essentially equivalent to Title I's use of the term 'reasonable accommodation[s]' \"); accord McElwee v. County of Orange , 700 F.3d 635, 640 n.2 (2d Cir. 2012) (noting that \"courts use the terms 'reasonable modifications' in Title II and 'reasonable accommodations' in Title I interchangeably\") (collecting cases). Shortly after enacting the ADA, Congress also undertook to amend the RA \"to ensure that the precepts and values embedded in the [ADA] [we]re reflected in the [RA],\" S. Rep. No. 102-357, at 2 (1992), to specify \"congressional findings, purpose, and policy\" for the RA, id. at 14, and to \"reaffirm[ ] ... the precepts of the [ADA]\"-intending such principles to \"guide the policies, practices, and procedures developed under all titles of the [RA],\" id. To those ends, Congress enacted the Rehabilitation Act Amendments of 1992, Pub. L. No. 102-569, 106 Stat. 4344 (codified as amended in various sections of Title 29), which set forth certain threshold findings, purposes, and policy applicable to the entire act, echoing the ADA. As a result, the RA, like the ADA, recognizes that disabilities do not diminish the right to full inclusion in American society. Compare 29 U.S.C. § 701(a)(3)(F) (finding that \"disability ... in no way diminishes the right of individuals\" to \"enjoy full inclusion and integration\" in the" }, { "docid": "5438088", "title": "", "text": "If Plaintiff does so, Defendant then bears the ultimate burden of persuasion that barrier removal is not readily achievable under subsection (iv). Placing the burden of persuasion on Defendant to prove the affirmative defense that barrier removal is not readily achievable is consistent with the remaining subsections of Title III. Section 12182(b)(2)(A)(i) provides that discrimination includes the imposition of eligibility criteria that “screen out” or “tend to screen out” individuals with disabilities unless the eligibility criteria can be shown to be necessary. Several district courts have placed the burden of showing that the eligibility criteria are necessary on the proponent of such criteria. See Hahn ex rel. Barta v. Linn County, Iowa, 130 F.Supp.2d 1036, 1055 (N.D.Iowa 2001) (“Eligibility criteria that ‘screen out’ or ‘tend to screen out’ disabled individuals violate the ADA unless the proponent of the eligibility criteria can show that the eligibility requirements are necessary.”); Bowers v. NCAA, 118 F.Supp.2d 494, 518 (D.N.J.2000) (same), opinion amended on reargument, 130 F.Supp.2d 610 (D.N.J. 2001); Guckenberger v. Boston Univ., 974 F.Supp. 106, 134 (D.Mass.1997) (“[P]ublic entities cannot use eligibility criteria that screen out or tend to screen out individuals with disabilities unless they can show that the criteria are necessary.”). Similarly, sections 12182(b)(2)(A)(ii) and (iii) provide an affirmative defense for an entity to demonstrate that compliance would fundamentally alter the nature of the goods and services provided. Consequently, the entity bears the burden of persuasion regarding fundamental alteration and undue burden. See Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1059 (5th Cir.1997) (under subsection (ii) modification claim, defendant bears “burden of proving that the requested modification would fundamentally alter the nature of the public accommodation”); Mayberry v. Von Valtier, 843 F.Supp. 1160, 1166 (E.D.Mich.1994) (shifting burden of proof to defendant in subsection (iii) ease). In Johnson, 116 F.3d at 1059, the Fifth Circuit addressed the burden of proof in a § 12182(b)(2)(A)(ii) reasonable modifica tion claim. The court held that the plaintiff bears the burden of proving that a modification was requested and that the requested modification was reasonable. Id. Once the plaintiff meets the burden of showing" }, { "docid": "15878136", "title": "", "text": "532 U.S. at 683 & 683 n. 38, 121 S.Ct. 1879, or that the requested modification poses a direct threat to the, health or safety of others, Bragdon v. Abbott, 524 U.S. 624, 648-49, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). The ADA does not require a public entity to provide a disabled individual with the accommodation of his choice. McElwee v. Cnty. of Orange, 700 F.3d 635, 641 (2d Cir.2012). Regarding Defendants’ alleged failure to make reasonable accommodations so that Plaintiff could use CVS’s goods and services, Plaintiff bears the burden of proving a modification was requested and is reasonable. Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052, 1059 (5th Cir.1997). The plaintiff satisfies this burden if he introduces evidence showing the requested modification is reasonable in the general sense—“that is, reasonable in the run of cases.”. Id. Although the defendant may introduce evidence showing the plaintiff’s requested modification is not reasonable,- the plaintiff has the ultimate burden of proof on the issue of reasonableness. Id. B. Whether Individuals Can Be Sued Under Title III Besides the five arguments summarized at the beginning of section (II) of this order, Defendants argue the Above-Store Defendants and Store-Level Defendants, who are individuals, are not proper defendants under Title III. ECF No. 21-1 at 3-4; ECF No. 22-1 at 2. Although the Fourth Circuit has not decided whether individuals may be sued under Title III, “[n]early every court that has, decided the issue of individual liability under Title III has found that individuals can be held responsible for violations of these prohibitions against discrimination if they own, lease, or operate a place of public accommodation.” Clement v. Satterfield, 927 F.Supp.2d 297, 313 (W.D.Va.2013) (alteration in original). “[T]he question of whether a person is a proper defendant under [Title III] turns not on.whether the defendant is a person, partnership, corporation or other entity but,- instead, whether the defendant owns, leases or operates a place of public accommodation within the meaning of the ADA.” Id. at 313-14 (alterations in original) (emphasis added). Thus, the relevant inquiry is whether the individual defendants operated the CVS" }, { "docid": "4349954", "title": "", "text": "are unrelated to performance. As another district court stated in a somewhat similar case, the USGA’s contention that it alone may set the rules is simply another version of its argument that the USGA is exempt from the provisions of the ADA, “[a]nd it is not.” Martin v. PGA Tour, Inc., 994 F.Supp. 1242, 1246 (D.Or.1998). Insofar as the USGA operates a place of public accommodation, it is subject to Title III of the ADA. III The court found a genuine issue of material fact, and so denied the summary judgment motion, insofar as the USGA argued that the accommodation that Mr. Olinger requests would fundamentally change the nature of the activity. Following the trial conducted on May 17-18, the court finds itself in agreement with the USGA’s argument. As explained in the previous section, the USGA is a lessor of a public accommodation, is subject to the ADA, and cannot discriminate against a golfer on account of a golfer’s disability. “Discrimination” under the ADA includes the failure of an owner, operator, lessee, or lessor of public accommodations “to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, [or] facilities ... to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, ... or accommodations.... ” 42 U.S.C. § 12182(b)(2)(A)(ii). While the “fundamentally alter” concept originated in the Supreme Court’s discussion of the reasonableness of an accommodation under the Rehabilitation Act in Southeastern Community College v. Davis, 442 U.S. 397, 410, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), “fundamentally alter” is now part of the statutory language of the ADA. See 42 U.S.C. § 12182(b)(2)(A)(ii). Rehabilitation Act reasonable accommodations case analysis “is easily transferrable to the Title III[ADA] reasonable modifications context.” Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052, 1059 (5th Cir.1997). Very similar language is found in both provisions. The Rehabilitation Act defines discrimination to include “not making reasonable accommodations ... unless [the defendant] can demonstrate that the accommodation would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A). The" }, { "docid": "1786908", "title": "", "text": "560. In sum, with respect to de facto violations, Title III only requires that places of public accommodation take remedial measures that are (a) effective, (b) practical, and (c) fiscally manageable. B. Title III Framework Prior to trial, the Court advised the parties that the evidence would be assessed under the analytical framework set forth by the Fifth Circuit in Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052 (5th Cir.1997). That framework provides: The plaintiff has the burden of proving that a modification was requested and that the requested modification is reasonable. The plaintiff meets this burden by introducing evidence that the requested modification is reasonable in the general sense, that is, reasonable in the run of cases. While the defendant may introduce evidence indicating that the plaintiffs requested modification is not reasonable in the run of cases, the plaintiff bears the ultimate burden of proof on the issue. If the plaintiff meets this burden, the defendant must make the requested modification unless the defendant pleads and meets its burden of proving that the requested modification would fundamentally alter the nature of the public accommodation. Id. at 1059 (internal citations and footnote omitted); see also Lieber, 80 F.Supp.2d at 1077 (setting forth the same analytical framework for barrier removals). C. Application of Title III to the Instant Case Preliminary Matters: Jurisdiction, the Parties, Standing, and the Applicability of Title III 1. The Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question). 2. Plaintiff Daniel Ruiz is disabled for purposes of Title III, and he has standing to maintain his claim for the alleged discrimination he incurred aboard the Princesa. 3. Plaintiff Luis Rodriguez is disabled for purposes of Title III, and he has standing to maintain his claim for the alleged discrimination he incurred aboard the Princesa. 4. Plaintiff Association for Disabled Americans, Inc. does not have standing to maintain a separate claim on behalf of its members because “any finding of an ADA violation requires proof as to each individual claimant.” Concerned Parents to Save Dreher Park v. City of W. Palm Beach, 884 F.Supp. 487, 488" }, { "docid": "19509281", "title": "", "text": "its sweep \"the wide variety of establishments available to the nondisabled,\" PGA Tour , 532 U.S. at 677, 121 S.Ct. 1879, including private schools regardless of whether they receive federal funding, see 42 U.S.C. § 12181(7)(j). Crucially, Title III of the ADA also codified the concept of \"reasonable accommodations\" that the Supreme Court had recognized for the RA in Choate . There, the Court established that liability could be premised on a failure to make \"reasonable accommodations,\" a standard that turned on (1) whether the requested accommodation to the program was \"reasonable\"; (2) whether it was necessary \"to assure meaningful access\"; and (3) whether it would represent \"a fundamental alteration in the nature of [the] program.\" Choate , 469 U.S. at 300-01, 105 S.Ct. 712 (citation omitted); see also Ridley Sch. Dist. v. M.R. , 680 F.3d 260, 280 (3d Cir. 2012) (identifying these elements). Mirroring this language, Congress used the same three criteria to define one type of \"discrimination\" under the ADA as: [1] a failure to make reasonable modifications in policies, practices, or procedures, when [2] such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless [3] the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. § 12182(b)(2)(A)(ii). Also of note, although Congress here used the term \"reasonable modifications,\" it used the term \"reasonable accommodations\" elsewhere in the ADA without apparent distinction. While Titles II and III defined discrimination to include the failure to make \"reasonable modifications,\" id. §§ 12131(2), 12182(b)(2)(A)(ii), Title I, which applied to employers, defined \"discrimination\" to include \"not making reasonable accommodations,\" id. § 12112(b)(5)(A). See Robertson v. Las Animas Cty. Sheriff's Dep't , 500 F.3d 1185, 1195 n.8 (10th Cir. 2007) (observing that \"Title II's use of the term 'reasonable modifications' is essentially equivalent to Title I's use of the term 'reasonable accommodation[s]' \"); accord McElwee v. County of Orange , 700 F.3d 635, 640 n.2 (2d Cir. 2012) (noting that \"courts use the terms 'reasonable modifications' in Title II" } ]

[ { "docid": "20167139", "title": "", "text": "2052. The current infatuation with “humanizing” the defendant as the be-all and end-all of mitigation disregards the possibility that this may be the wrong tactic in some cases because experienced lawyers conclude that the jury simply won’t buy it. Not all defendants are capable of rehabilitation, and not all juries are susceptible to such a plea. Counsel, who are in the courtroom and can observe the jurors and their reaction to various witnesses (including the defendant), may have good reason for pursuing other avenues of mitigation, such as sympathy for the defendant’s family. According to our case law, as amplified by today’s opinion, any trial lawyer who fails to worship at the altar of “humanization” will be labeled an incompetent boob by later counsel and federal judges who all think they know how to represent the capital defendant better than his own trial lawyers. No self-respecting lawyer wants to be berated in a published opinion — as today’s opinion does to Pinholster’s trial counsel — so their self-interest will cause them to pursue the safe course for themselves rather than the course that best serves the client’s interests. Current and future capital defendants will pay with their lives for preserving Pinholster’s. Cf. Van Hook, 130 S.Ct. at 17. The majority’s methodology, which reflects the received wisdom in our court, has become an unstoppable engine for setting aside death sentences. See, e.g., Hamilton v. Ayers, 583 F.3d 1100, 1118 (9th Cir.2009) (requiring counsel to retain a mental health expert); Belmontes v. Ayers, 529 F.3d 834, 857-58 (9th Cir.2008) (requiring counsel not merely to investigate mitigating mental health evidence, but to present it), rev’d sub nom., Wong v. Belmontes, 558 U.S. -, 130 S.Ct. 383, — L.Ed.2d - (2009) (per curiam); Lambright v. Schriro, 490 F.3d 1103, 1119 (9th Cir.2007) (requiring counsel to “humanize” the defendant at sentencing). These cases, like the majority here, systematically fail to take Strickland seriously. That Belmontes was unanimously'— and unceremoniously — reversed seems to have made no impression around here. 1. The Standard of Care. Petitioner has presented no evidence as to the standard of professional" } ]

[ { "docid": "16799364", "title": "", "text": "argument regarding use of the Hammitt interview as mitigation evidence during the sentencing phase. We pause for a moment to note our dissenting colleague’s disturbing argument that the passage of time should somehow militate against habeas relief. See Dissenting Opinion, pp. 628-29. Indeed, Stanley has met all deadlines in filing for post-conviction relief, including the restrictive AEDPA deadlines. After the Arizona Supreme Court affirmed Stanley’s conviction in 1991, Stanley filed a preliminary petition for post-conviction relief in the trial court. The trial court took nearly five years to deny the petition even though it did not hold a hearing. Less than three weeks after the Arizona Supreme Court’s denial of Stanley’s state petition, Stanley filed his federal habeas petition. The district court took more than eight years to deny the petition. Stanley then promptly appealed to the Ninth Circuit. For the dissent to suggest that the lengthy process, none of it due to a lack of diligence on Stanley’s part, is reason to deny him an evidentiary hearing violates every sense of fairness and justice. Moreover, the increasing frequency with which innocent people have been vindicated after years of imprisonment counsels a different approach. See Samuel R. Gross et al., Exonerations in the United States 1989 through 2008, 95 J. Crim. L. & Criminology 523, 523-24 (2004) (noting that from 1989 through 2003 exonerated individuals “spent more than 3,400 years in prison for crimes for which they should never have been convicted ... ”). We note this phenomenon, not to imply that Stanley is innocent, but to emphasize that it is never too late to correct an injustice. We also point out that because the district court addressed whether an evidentiary hearing was warranted, that issue is squarely presented on appeal. See Sechrest v. Ignacio, 549 F.3d 789, 810 n. 10 (9th Cir.2008). Finally, it is important to keep in mind that our decision in no way affects Stanley’s conviction, and it may not affect his sentence. All this decision does is give Stanley the opportunity to establish whether his counsel’s failure to fully inform the defense mental health experts" }, { "docid": "16799381", "title": "", "text": "appeal. Second, the majority rejects Stanley’s claim of ineffective assistance for failure to present evidence to explain the cumulative effects of Stanley’s chronic substance abuse, because “he has failed to present evidence to support his contention, other than the evidence presented at trial.” Majority Op. 622, citing Cox v. Del Papa, 542 F.3d 669, 681 (9th Cir.2008) (“Without any specification of the mitigating evidence that counsel failed to unearth, [the petitioner’s] claim must fail.”) (citation omitted). I disagree. Stanley has argued that his counsel provided ineffective assistance at sentencing because, “[a]lthough a few witnesses did testify very briefly about drug use, there was no testimony ... to explain, from a scientific standpoint, how the drug and alcohol abuse could have affected his actions on the night of the crime.” That is enough suggestion of “what additional testimony would have been given by the experts” to make out a colorable claim of prejudice and to entitle Stanley to a hearing on the matter. Majority Op. 622. See Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir.1999) (as amended) (finding that although the jury had information on defendant’s background, it did not “have the benefit of expert testimony to explain the ramifications of [this background] on Caro’s behavior”); Frierson v. Woodford, 463 F.3d 982, 994 (9th Cir.2006) (“The district court misapprehended the different purposes for the drug evidence at each phase of trial. Evidence of a history of chronic drug abuse may not have been sufficient to demonstrate that [defendant] lacked the requisite mental state for the crime, but the extent of [defendant’s] drug use from an early age was an important mitigating factor that the jury did not have an opportunity to consider.”) Therefore, while I concur in the majority opinion, I am compelled to set out these additional reasons for reversing the district court and remanding for an evidentiary hearing. KLEINFELD, Circuit Judge, concurring in part and dissenting in part: I concur in the majority’s rejection of Stanley’s claims that his confession was inadmissible, and that his lawyer rendered ineffective assistance in the guilt phase of his trial. I respectfully" }, { "docid": "16799409", "title": "", "text": "not claim to be among the innocent. The majority does not suggest any possibility that he is innocent. The delay matters here because the only issue is what may seem to be an unspoken rule in our circuit that anyone sentenced to death had ineffective assistance of counsel during the sentencing phase of his trial or at least needs an evidentiary hearing decades after sentencing to find out. See, e.g., Pinholster v. Ayers, 590 F.3d 651 (9th Cir.2009) (en banc); Belmontes v. Ayers, 529 F.3d 834 (9th Cir.2008), reversed, Wong v. Belmontes, — U.S. -, 130 S.Ct. 383, - L.Ed.2d - (2009); Landrigan v. Schriro, 441 F.3d 638 (2006), reversed, Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). My colleagues and I share a concern with getting accurate results from the courts to avoid wrongful imprisonment of the innocent. We also ought to share a concern with getting accurate and reliable results on whether lawyers rendered ineffective assistance, a task best accomplished when the lawyers who rendered the assistance are alive to explain what they did and why they did it. I do not suggest that the delay is Stanley's fault. My point is that the decades preceding an evidentiary hearing on what his lawyer did and why make the hearing unreliable where the lawyer cannot testify because he is dead. . Stanley v. Schriro, No. CV-98-0430, 2006 WL 2816541, at *33 (D.Ariz. Sept. 27, 2006). . See Landrigan, 550 U.S. at 481, 127 S.Ct. 1933 (reversing the Ninth Circuit and holding that a district court did not abuse its discretion in refusing to grant an evidentiary hearing to death row inmate where it determined that, even assuming the truth of all facts respondent sought to prove at the hearing, respondent was not entitled to federal habeas relief because the evidence respondent sought to introduce would not have changed the result). .The majority opinion suggests that the heinous details of the two murders are immaterial to the merits of the legal issues. That argument is mistaken. The heinous details were why the judge sentenced Stanley" }, { "docid": "16799410", "title": "", "text": "alive to explain what they did and why they did it. I do not suggest that the delay is Stanley's fault. My point is that the decades preceding an evidentiary hearing on what his lawyer did and why make the hearing unreliable where the lawyer cannot testify because he is dead. . Stanley v. Schriro, No. CV-98-0430, 2006 WL 2816541, at *33 (D.Ariz. Sept. 27, 2006). . See Landrigan, 550 U.S. at 481, 127 S.Ct. 1933 (reversing the Ninth Circuit and holding that a district court did not abuse its discretion in refusing to grant an evidentiary hearing to death row inmate where it determined that, even assuming the truth of all facts respondent sought to prove at the hearing, respondent was not entitled to federal habeas relief because the evidence respondent sought to introduce would not have changed the result). .The majority opinion suggests that the heinous details of the two murders are immaterial to the merits of the legal issues. That argument is mistaken. The heinous details were why the judge sentenced Stanley to death. Our critical question is whether the trial judge would have sentenced Stanley to death if at the penalty phase the trial judge had heard Stanley's statements to Dr. Ham-mitt, as well as the opinion from two doctors, instead of one doctor, that Stanley had a dissociative reaction. The details of the murder of the daughter together with the sentencing judge's comments on that murder provide the answer. The trial judge had already heard testimony from one of these two doctors that Stanley had a dissociative reaction, and from the other doctor that Stanley might have had a dissociative reaction. Having heard this testimony, the trial judge nevertheless sentenced Stanley to death because of the close-range execution style of the killings, and because he killed his daughter in order to eliminate her as a witness to her mother’s murder. . The majority opinion suggests that Dr. Hammitt's statements that \"[njothing [Stanley] said indicated to me any degree of remorse per se” and that he “never volunteered any comments about remorse” are \"a far cry" }, { "docid": "16799365", "title": "", "text": "Moreover, the increasing frequency with which innocent people have been vindicated after years of imprisonment counsels a different approach. See Samuel R. Gross et al., Exonerations in the United States 1989 through 2008, 95 J. Crim. L. & Criminology 523, 523-24 (2004) (noting that from 1989 through 2003 exonerated individuals “spent more than 3,400 years in prison for crimes for which they should never have been convicted ... ”). We note this phenomenon, not to imply that Stanley is innocent, but to emphasize that it is never too late to correct an injustice. We also point out that because the district court addressed whether an evidentiary hearing was warranted, that issue is squarely presented on appeal. See Sechrest v. Ignacio, 549 F.3d 789, 810 n. 10 (9th Cir.2008). Finally, it is important to keep in mind that our decision in no way affects Stanley’s conviction, and it may not affect his sentence. All this decision does is give Stanley the opportunity to establish whether his counsel’s failure to fully inform the defense mental health experts undermines confidence in the sentence of death imposed. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. On post-conviction review, the Superior Court of the State of Arizona held that trial counsel’s decision to withhold the Hammitt interview was a reasonable tactical decision because “the possible harm to the defense which could be caused by use of Dr. Hammitt’s interview outweighed the possible benefits the use of the interview might produce.” State v. Stanley, No. CR 11909, at 7 (Ariz.Super.Ct. May 19, 1997). The court concluded that, “with regard to the issue of sentencing, Dr. Hammitt’s interview could have undermined the claim of a disassociative (sic) reaction ...” Id. Without holding an evidentiary hearing or making any findings regarding the investigation underlying trial counsel’s decision, the court found that “[Stanley’s] determination not to waive the physician-client privilege was a matter of reasoned trial strategy and does not pres ent a colorable claim that trial counsel was ineffective for failing to do so.” Id. Where a petitioner has not failed to develop the factual basis of" }, { "docid": "20585356", "title": "", "text": "sentencing. Id. at 1239. During the penalty phase of his criminal trial, petitioner “took the stand himself and requested that the trial court impose the death penalty.” Id. at 1240. On appeal, we explained that although counsel’s performance during the penalty phase is critical in a capital case, “[failure to present mitigating evidence is not per se ineffective assistance of counsel.” Id. at 1247. Instead, courts must look to counsel’s reasons for not presenting available mitigating evidence and must take into account that “[t]he reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements and actions.” Id. (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052). We therefore concluded that petitioner had failed to show counsel’s performance was deficient because “counsel’s decision not to investigate or present mitigating evidence was completely determined by petitioner and was within the realm of reasonable tactical decisions.” Id. at 1248; see also Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir.2005) (“[T]he Constitution does not prohibit a competent capital defendant from waiving the presentation of mitigation evidence.”); Singleton v. Lockhart, 962 F.2d 1315, 1321 (8th Cir.1992) (ruling that in the face of a defendant’s waiver of mitigating evidence, defense counsel “was under no duty” to present a mitigation case). The Supreme Court addressed a similar issue in Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). During the penalty phase of the defendant’s criminal trial in Landrigan, defendant prohibited his family members from testifying on his behalf, told the trial judge there was no relevant mitigating evidence, and interfered with counsel’s efforts to present mitigating evidence in open court. Id. at 475-77, 127 S.Ct. 1933. On appeal from the denial of federal habe-as relief, an en banc panel of the Ninth Circuit ruled the district court abused its discretion in denying petitioner’s request for an evidentiary hearing to determine whether trial counsel was ineffective during the penalty phase. Id. at 472, 127 S.Ct. Í933. The Supreme Court granted certiorari and reversed the court of appeals. The Court ruled it was “not objectively unreasonable” for the" }, { "docid": "16799382", "title": "", "text": "(as amended) (finding that although the jury had information on defendant’s background, it did not “have the benefit of expert testimony to explain the ramifications of [this background] on Caro’s behavior”); Frierson v. Woodford, 463 F.3d 982, 994 (9th Cir.2006) (“The district court misapprehended the different purposes for the drug evidence at each phase of trial. Evidence of a history of chronic drug abuse may not have been sufficient to demonstrate that [defendant] lacked the requisite mental state for the crime, but the extent of [defendant’s] drug use from an early age was an important mitigating factor that the jury did not have an opportunity to consider.”) Therefore, while I concur in the majority opinion, I am compelled to set out these additional reasons for reversing the district court and remanding for an evidentiary hearing. KLEINFELD, Circuit Judge, concurring in part and dissenting in part: I concur in the majority’s rejection of Stanley’s claims that his confession was inadmissible, and that his lawyer rendered ineffective assistance in the guilt phase of his trial. I respectfully dissent from the majority’s decision that Stanley is entitled to an evidentiary hearing on whether his lawyer rendered ineffective assistance in the penalty phase. Federal evidentiary hearings on state habeas petitions are limited and discretionary. This case shows one reason why. Murderers sentenced to death typically outlive many of the other participants at trial. Stanley murdered his wife and daughter in 1986 and the evidentiary hearing would take place, probably, in 2010, almost a quarter century later. Because the issue would be whether his lawyer rendered ineffective assistance, the focus would be on asking his lawyer what he did, what he did not do, and why he acted or refrained from acting as he did. That cannot happen, because Stanley’s lawyer is dead. There is nothing unusual about a lawyer of the level of experience adequate to defend death penalty cases dying in the quarter century following trial, nor is there anything unusual about the decades between trial and a favorable appellate decision in a § 2254 habeas case. If the lawyers are still alive," }, { "docid": "11425972", "title": "", "text": "of the prejudice inquiry generally. Further, while the plea bargain process is complex, so is trial. To answer the prejudice question in the trial context, one must consider the weight of the present evidence, the views of the jury, the choices of the defense and, yes, the prosecutor. Yet courts, undaunted, do so. See, e.g., Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1943-44, 167 L.Ed.2d 836 (2007) (considering whether a capital defendant was prejudiced by his counsel’s failure to introduce mitigation evidence); Williams v. Taylor, 529 U.S. 362, 396-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (concluding that a defendant was prejudiced by counsel’s failure to investigate his background, which would have resulted in additional mitigation evidence); Lopez v. Schriro, 491 F.3d 1029, 1044 (9th Cir.2007) (holding that defense counsel’s failure to object to medical evidence did not prejudice the defendant). I cannot say that assessing, for instance, whether a jury would have ruled differently on a death sentence, see Landrigan, 127 S.Ct. at 1943-44, 127 S.Ct. 1933; Williams, 529 U.S. at 396-98, 120 S.Ct. 1495, is so obvi ously easier than deciding whether a defendant would be in a better plea bargaining position as to warrant characterizing the latter question as “impossible” for courts to answer. Nor, for that matter, is inquiring into a defendant’s plea bargaining leverage self-evidently harder than determining whether “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366. There, too, we must inquire into the strength of the defendant’s ease and the sentence the prosecutor likely would have sought (albeit at trial, rather than as part of a plea bargain). That inquiry, again, is not particularly easier than the plea bargain leverage question. My point, in sum, is this: Leaving aside the entirely out-of-place constitutional problems that the dissent raises, the objection that the prejudice inquiry outlined here is “counter-factual,” and may sometimes be difficult to apply, does not distinguish this prejudice inquiry from other sorts that we regularly carry" }, { "docid": "16799407", "title": "", "text": "rendered ineffective assistance in this case is going to be a very odd proceeding. Because Stanley’s lawyer is dead, he cannot be asked to fall on his sword and testify about what a bad lawyer he was for not giving Dr. Hammitt’s notes and interview to his expert witnesses. Habeas counsel may be able to produce an expert witness to testify that any competent lawyer would have done so, and will be able to have his two experts testify in accord with what they say in their affidavits, that it would have made a difference to what they said. But even in the unlikely event that all this persuades the district judge that Stanley’s lawyer did so bad a job that it was deficient despite being strategic, such a finding would be of no significance, because prejudice cannot be established. We already know the answer about whether the lawyer’s putatively deficient performance might have made a difference, because the record establishes that the judge sentenced Stanley to death for executing his daughter to keep her from talking. We do not have a legal justification for doing anything but affirming, because established habeas law precludes the federal courts from granting a writ against this state sentence. . Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). . See, e.g., Sechrest v. Ignacio, 549 F.3d 789 (9th Cir.2008) (twenty-five years passed between state court conviction and grant of federal habeas relief); Frierson v. Woodford, 463 F.3d 982, 985 (9th Cir.2006) (twenty-eight years passed between state court conviction and grant of federal habeas relief); Landrigan v. Schriro, 441 F.3d 638 (9th Cir.2006) (eighteen years passed between state court conviction and grant of federal habeas relief), rev’d, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). . The majority finds my comment about the passage of time \"disturbing” because of \"the increasing frequency with which innocent people have been vindicated after years of imprisonment.” See Majority Opinion at 623. I can think of few tasks more important than freeing innocent people who have been wrongly imprisoned. Stanley does" }, { "docid": "23569717", "title": "", "text": "failing to comply with an independent and adequate state procedural rule, Mr. Matthews has asserted ineffective assistance of appellate counsel as the cause of his failure to raise this challenge. If he could prove such a failure by appellate counsel, he might have grounds to avoid the procedural bar. See Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). But we need not enter this thicket. Even assuming de novo review, the claim fails. . As an alternative to vacating his conviction, Mr. Matthews requests that we remand to the district court with instructions to hold an evidentiary hearing on his ineffective assistance claims. But Mr. Matthews is entitled to an evidentiary hearing only if \"his allegations, if true and not contravened by the existing factual record, would entitle him to habeas relief.\" Bryan v. Mullin, 335 F.3d 1207, 1214 (10th Cir.2003) (en banc); see also Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). And, as we have discussed, Mr. Matthews’s allegations, even if assumed true, would not show that he received ineffective counsel; accordingly, we are constrained to deny his request for an evidentiary hearing. . The trial court instructed the jury as follows: “If you unanimously find that one or more of the aggravating circumstances existed beyond a reasonable doubt, the death penalty shall not be imposed unless you find that any such aggravating circumstances outweigh the finding of one or more mitigating circumstances. Even if you find that the aggravating circumstances outweigh the mitigating circumstances, you may impose a sentence of imprisonment for life with the possibility of parole or imprisonment for life without the possibility of parole.” State Court Record at 2387. . Mr. Matthews also argues that he is entitled to relief for cumulative error. In the federal habeas context, the only otherwise harmless errors that can be aggregated are federal constitutional errors, and such errors will suffice to permit relief under cumulative error doctrine \"only when the constitutional errors committed in the state court trial so fatally infected the trial that they violated" }, { "docid": "20167140", "title": "", "text": "course for themselves rather than the course that best serves the client’s interests. Current and future capital defendants will pay with their lives for preserving Pinholster’s. Cf. Van Hook, 130 S.Ct. at 17. The majority’s methodology, which reflects the received wisdom in our court, has become an unstoppable engine for setting aside death sentences. See, e.g., Hamilton v. Ayers, 583 F.3d 1100, 1118 (9th Cir.2009) (requiring counsel to retain a mental health expert); Belmontes v. Ayers, 529 F.3d 834, 857-58 (9th Cir.2008) (requiring counsel not merely to investigate mitigating mental health evidence, but to present it), rev’d sub nom., Wong v. Belmontes, 558 U.S. -, 130 S.Ct. 383, — L.Ed.2d - (2009) (per curiam); Lambright v. Schriro, 490 F.3d 1103, 1119 (9th Cir.2007) (requiring counsel to “humanize” the defendant at sentencing). These cases, like the majority here, systematically fail to take Strickland seriously. That Belmontes was unanimously'— and unceremoniously — reversed seems to have made no impression around here. 1. The Standard of Care. Petitioner has presented no evidence as to the standard of professional competence in capital cases that prevailed in Los Angeles in 1984. Rather, he relies on — -and the majority accepts — the ABA Guidelines as the governing standard. The Supreme Court disagrees with this approach: “Restatements of professional standards ... can be useful as ‘guides’ to what reasonableness entails, but only to the extent they describe the professional norms prevailing when the representation took place.” Van Hook, at 16. For the ABA Guidelines to be relevant, they “must reflect prevailing norms of practice and standard practice.” Id. 130 S.Ct. at 17 n. 1 (internal quotation marks, alterations and citations omitted). Pinholster, who has the burden of proof, offers no evidence that the 1982 ABA Guidelines meet this standard for a capital trial in Los Angeles in 1984. Moreover, at the time of Pinholster’s trial, the ABA had no guidelines specifically applicable to capital cases (those didn’t come about until 1989), and the guidelines pertaining to criminal cases were quite general. They certainly did not impose anything like the straightjacket the majority retroactively imposes on counsel" }, { "docid": "16799413", "title": "", "text": ". The majority suggests that my view minimizes the effect of Stanley’s remark on the penalty phase of the trial. Majority Opinion at 624-25. Rather, I believe that the majority mischaracterizes the effect of the remarks on the defense experts' positions by saying that this information \"would have completely changed their testimony in Stanley’s favor[J” Majority Opinion at 624-25. Dr. Bindleglass states that he would have testified that Stanley had a dissociative reaction, but that was already his position at trial. Dr. Buñuel states that he would have opined that Stanley had a dissociative reaction, as opposed to his position at trial that Stanley might have had a dissociative reaction. The state superior court judge, not Dr. Bindleglass or Dr. Buñuel, had sentencing responsibility. It is clear from the sentencing judge’s remarks that Dr. Buñuel's change from “might have had” to \"did have” a dissociative reaction would not have changed the sentencing judge's mind. The sentencing judge commented on various aspects of the evidence, but not this one. His explanation for the sentence focused on murder of Stanley’s helpless child because she might otherwise be a witness, not on the psychological underpinnings of Stanley's conduct. The trial judge was thus already presented with defense expert testimony regarding the dissociative reaction theory, and nevertheless sentenced him to death for the reasons discussed at length above. Moreover, we cannot only consider how Dr. Ham-mitt's statements might have been favorable to Stanley in the sentencing phase, but also how Dr. Hammitt’s statements may have had hurt Stanley in the sentencing phase. . Landrigan, 550 U.S. at 474, 127 S.Ct 1933. . See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). . Landrigan, 550 U.S. at 468, 481, 127 S.Ct. 1933 (reviewing for abuse of discretion the district court’s decision not to grant an evidentiary hearing). . Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . Id. at 686, 104 S.Ct. 2052; see also Bobby v. Van Hook, - U.S. -, 130 S.Ct. 13, 16-17, 175 L.Ed.2d 255" }, { "docid": "11425971", "title": "", "text": "to the prosecutor’s case is inherent in any prejudice inquiry, whether under Hill or the more general framework of Kimmelman and Strickland, and does not convert asking the question into an assault on prosecutorial discretion. I acknowledge that, as the dissent points out, the Kimmelman/Strickland analysis of the defendant’s plea bargain leverage is “counter-factual,” will be conducted “in most cases, years after the decision to offer the challenged plea bargain,” and may be difficult. Dis. op. at 1157. Unlike Judge Bybee, however, I do not think that asking courts to consider these matters poses an “impossible question.” See id. First, the prejudice inquiry is always counter-factual — we are asking, after all, whether there “is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” Strickland, 466 U.S. at 694, 104 S.Ct. 2052 — and generally occurs years after the fact if it has reached an appellate court. So, that objection is not uniquely directed at the plea bargain inquiry I suggest, but is instead a critique of the prejudice inquiry generally. Further, while the plea bargain process is complex, so is trial. To answer the prejudice question in the trial context, one must consider the weight of the present evidence, the views of the jury, the choices of the defense and, yes, the prosecutor. Yet courts, undaunted, do so. See, e.g., Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1943-44, 167 L.Ed.2d 836 (2007) (considering whether a capital defendant was prejudiced by his counsel’s failure to introduce mitigation evidence); Williams v. Taylor, 529 U.S. 362, 396-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (concluding that a defendant was prejudiced by counsel’s failure to investigate his background, which would have resulted in additional mitigation evidence); Lopez v. Schriro, 491 F.3d 1029, 1044 (9th Cir.2007) (holding that defense counsel’s failure to object to medical evidence did not prejudice the defendant). I cannot say that assessing, for instance, whether a jury would have ruled differently on a death sentence, see Landrigan, 127 S.Ct. at 1943-44, 127 S.Ct. 1933; Williams, 529 U.S. at 396-98," }, { "docid": "16799408", "title": "", "text": "from talking. We do not have a legal justification for doing anything but affirming, because established habeas law precludes the federal courts from granting a writ against this state sentence. . Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). . See, e.g., Sechrest v. Ignacio, 549 F.3d 789 (9th Cir.2008) (twenty-five years passed between state court conviction and grant of federal habeas relief); Frierson v. Woodford, 463 F.3d 982, 985 (9th Cir.2006) (twenty-eight years passed between state court conviction and grant of federal habeas relief); Landrigan v. Schriro, 441 F.3d 638 (9th Cir.2006) (eighteen years passed between state court conviction and grant of federal habeas relief), rev’d, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). . The majority finds my comment about the passage of time \"disturbing” because of \"the increasing frequency with which innocent people have been vindicated after years of imprisonment.” See Majority Opinion at 623. I can think of few tasks more important than freeing innocent people who have been wrongly imprisoned. Stanley does not claim to be among the innocent. The majority does not suggest any possibility that he is innocent. The delay matters here because the only issue is what may seem to be an unspoken rule in our circuit that anyone sentenced to death had ineffective assistance of counsel during the sentencing phase of his trial or at least needs an evidentiary hearing decades after sentencing to find out. See, e.g., Pinholster v. Ayers, 590 F.3d 651 (9th Cir.2009) (en banc); Belmontes v. Ayers, 529 F.3d 834 (9th Cir.2008), reversed, Wong v. Belmontes, — U.S. -, 130 S.Ct. 383, - L.Ed.2d - (2009); Landrigan v. Schriro, 441 F.3d 638 (2006), reversed, Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). My colleagues and I share a concern with getting accurate results from the courts to avoid wrongful imprisonment of the innocent. We also ought to share a concern with getting accurate and reliable results on whether lawyers rendered ineffective assistance, a task best accomplished when the lawyers who rendered the assistance are" }, { "docid": "20167115", "title": "", "text": "Court twice considered Pinholster’s claim that his death sentence be set aside because his lawyers performed ineffectively, and twice rejected that claim on the merits. Under AEDPA, those determinations come to us encased in a double layer of deference: first, the substantial deference to which lawyers are entitled under Strickland in making judgments during the course of their representation; and, second, the deference to which the state court is entitled in determining whether the lawyers’ performance was ineffective and prejudicial. The first layer of deference may be overcome only if counsel’s performance was objectively unreasonable under prevailing norms at the time and place of trial. The second layer may be overcome only if the state supreme court’s determination is contrary to or an unreasonable application of clearly established Supreme Court authority. Pinholster comes nowhere close to flipping this “doubly deferential” presumption. Knowles v. Mirzayance, — U.S. -, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009). The majority reaches the contrary conclusion through a series of mistakes that have, unfortunately, become far too common in our circuit. First, the majority relies on evidence never presented to the state courts and that we may therefore not consider in federal habeas proceedings governed by AEDPA. Contra Williams v. Taylor (Michael Williams), 529 U.S. 420, 437-40, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Second, the majority applies retrospectively a standard for counsel’s performance that bears no relationship to that prevailing in California at the time of Pin-holster’s trial in 1984. Contra Bobby v. Van Hook, — U.S. -, 130 S.Ct. 13,18-19 (2009) (per curiam). Third, and perhaps worst of all, the majority accords no deference to the California Supreme Court’s superior expertise in determining what constitutes competent representation among the members of its bar and the likely consequences (or lack thereof) of any deficient performance. Contra Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933,167 L.Ed.2d 836 (2007). Few state court judgments can withstand even one such error, see, e.g., Jones v. Ryan, 583 F.3d 626 (9th Cir.2009); Libberton v. Ryan, 583 F.3d 1147 (9th Cir.2009); Gilley v. Morrow, 246 Fed.Appx. 519 (9th" }, { "docid": "15121938", "title": "", "text": "district court on October 16, 1996. The petition focused on claims of ineffective assistance at sentencing. Ultimately, the United States Supreme Court reversed this court’s grant of an evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007), rev’g 441 F.3d 638 (9th Cir.2006) (en banc). Meanwhile, an Arizona statute was enacted in 2000 that provided for post-conviction DNA testing. In the wake of that statute, an investigator with the office of the Federal Public Defender for the District of Arizona contacted the Phoenix Police Department to determine whether hair found on or in Dyer’s hand, and a fingernail found in his apartment, still existed. The Police Department couldn’t find them. In the summer of 2006, Landrigan sought an order from the Maricopa County Superior Court authorizing him to conduct post-conviction DNA testing on the fingernail and hairs. Although the state indicated that this evidence was available, and an order was issued, on January 29, 2007 the Phoenix Police Department again said it couldn’t find the fingernail or hams. On August 6, 2007, Landrigan asked the superior court to expand its 2006 DNA testing order to include Dyer’s jeans, the blanket from his bed, and a set of two curtains from his apartment. The court did so. The jeans, blanket, and curtains were sent to Technical Associates Inc. (TAI), a Ventura, California laboratory, for testing. TAI reported on April 22, 2008 that Landrigan was excluded as a contributor of any of the DNA. Landrigan asked for an evidentiary hearing which the superior court denied (August 7, 2009) on the footing that there was no dispute about the findings for an evidentiary hearing to resolve. On August 10, 2009 Landrigan sought to amend his post-conviction review petition to assert that the results of the DNA testing showed that the sentencing judge erroneously concluded he was eligible for the death penalty under Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). The superior court dismissed this petition (October 5, 2009), finding that the DNA evidence would not have affected the trial court’s" }, { "docid": "20472098", "title": "", "text": "Nevertheless, because Stokley presented a potentially colorable argument that he meets this standard, we assume without deciding that Stokley can show cause and prejudice for his failure to present his claim to the state courts. We similarly assume that the diligence requirement in § 2254(e)(2) does not prevent Stokley from receiving an evidentiary hearing. See West v. Ryan, 608 F.3d 477, 485 (9th Cir. 2010) (making the same assumption); see also Williams, 529 U.S. at 444, 120 S.Ct. 1479 (suggesting that the standard for satisfying § 2254(e)(2) is similar to the standard necessary to establish cause and prejudice). B. The Strickland Standard Proceeding on those assumptions, we review Stokley’s request for a hearing. We may overturn the district court’s “ultimate denial of an evidentiary hearing” only if that denial constituted an abuse of discretion. Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir.2005). To receive an evidentiary hearing, Stokley must show that he has “a colorable claim of ineffective assistance.” Fairbank v. Ayers, 650 F.3d 1243, 1251 (9th Cir. 2011) (internal quotation marks omitted). Stokley must, in other words, demonstrate that “a hearing could enable [him] to prove ... factual allegations” that, “if true, would entitle [him] to federal habeas relief.” Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007)). Because Stokley’s claim is premised on the alleged ineffective assistance of counsel, he must satisfy the two-pronged test in Strickland. Specifically, Stokley must present a colorable claim “that (1) ‘counsel’s representation fell below an objective standard of reasonableness’ and (2) there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” West, 608 F.3d at 485-86 (quoting Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052). “ ‘Surmounting [this] high bar is never an easy task.’ ” Harrington v. Richter, — U.S.-, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (quoting Padilla v. Kentucky, 599 U.S. -, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010)). Stokley cannot overcome the first hurdle— that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S." }, { "docid": "15137377", "title": "", "text": "S.Ct. 2527, 156 L.Ed.2d 471 (2003) (discussing the duty to investigate mitigating evidence and incorporating the 1989 ABA Guidelines regarding competent representation in capital cases). Thus, the Sixth Circuit has not hesitated to hold that “failure to investigate possible mitigating factors and failure to present mitigating evidence at sentencing can constitute ineffective assistance of counsel under the Sixth Amendment.” Martin v. Mitchell, 280 F.3d 594, 612 (6th Cir.2002) (citing Carter v. Bell, supra, 218 F.3d at 600, and Skaggs v. Parker, 235 F.3d 261, 271 (6th Cir.2000)). Notwithstanding what the foregoing authority establishes about an attorney’s duty to conduct a thorough investigation into all reasonably available mitigating evidence, the fact remains that counsel does not render ineffective assistance by complying with his client’s express wishes not to present mitigating evidence. The Supreme Court recently addressed, for the first time, a situation in which a death-sentenced individual not only elected not to present mitigating evidence, but also actively prevented his attorney from presenting any mitigating evidence. Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1941, 167 L.Ed.2d 836 (2007) held definitively that a death-eligible defendant who instructed his attorney not to present mitigating evidence could not establish that he was prejudiced by counsel’s resulting failure to present mitigating evidence. Even prior to Schriro, there was no shortage of federal cases rejecting claims of ineffective assistance for the failure to present mitigating evidence where that “failure” stemmed from the petitioners’ express instructions not to present mitigating evidence. See, e.g., Jeffries v. Blodgett, 5 F.3d 1180, 1197-98 (9th Cir.1993); Shelton v. Carroll, 464 F.3d 423, 439-40 (3rd Cir.2006). Immediately following Schriro, courts continued to reject such claims. See e.g., Taylor v. Horn, 504 F.3d 416, 455-56 (3rd Cir.2007); Wood v. Quarterman, 491 F.3d 196, 203 (5th Cir.2007). The Sixth Circuit has held, with respect to counsel’s acquiescence to the petitioner’s instructions forbidding or limiting the presentation of mitigating evidence, that counsel does not render ineffective assistance by acquiescing to his client’s wishes. See Keith v. Mitchell, 455 F.3d 662, 672 (6th Cir.2006) (finding no ineffective assistance for pursuing strategy knowingly directed by" }, { "docid": "15121937", "title": "", "text": "judge found no statutory mitigating circumstances sufficient to call for leniency, but she identified family love and lack of premeditation as non-statutory mitigating circumstances. On balance, the sentencing judge concluded, the mitigating factors did not outweigh the aggravating circumstances. Accordingly, Landrigan was sentenced to an aggravated terra of 20 years on the burglary count, six months in county jail for theft, and death for murder. In the course of rendering her decision, the sentencing judge found from the evidence at trial and at sentencing that Landrigan “was the actual killer, that he intended to kill the victim and was a major participant in the act. Although the evidence shows that another person may have been present, the Court finds that the blood spatters on the tennis shoes of the defendant demonstrate that he was the killer in this case.” The Arizona Supreme Court affirmed Landrigan’s conviction and sentence on direct appeal. Landrigan, 859 P.2d at 114, 117-18. After post-conviction relief proceedings in state court, Landrigan filed a petition for writ of habeas corpus in federal district court on October 16, 1996. The petition focused on claims of ineffective assistance at sentencing. Ultimately, the United States Supreme Court reversed this court’s grant of an evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007), rev’g 441 F.3d 638 (9th Cir.2006) (en banc). Meanwhile, an Arizona statute was enacted in 2000 that provided for post-conviction DNA testing. In the wake of that statute, an investigator with the office of the Federal Public Defender for the District of Arizona contacted the Phoenix Police Department to determine whether hair found on or in Dyer’s hand, and a fingernail found in his apartment, still existed. The Police Department couldn’t find them. In the summer of 2006, Landrigan sought an order from the Maricopa County Superior Court authorizing him to conduct post-conviction DNA testing on the fingernail and hairs. Although the state indicated that this evidence was available, and an order was issued, on January 29, 2007 the Phoenix Police Department again said it couldn’t find the fingernail or hams. On" }, { "docid": "20167116", "title": "", "text": "circuit. First, the majority relies on evidence never presented to the state courts and that we may therefore not consider in federal habeas proceedings governed by AEDPA. Contra Williams v. Taylor (Michael Williams), 529 U.S. 420, 437-40, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Second, the majority applies retrospectively a standard for counsel’s performance that bears no relationship to that prevailing in California at the time of Pin-holster’s trial in 1984. Contra Bobby v. Van Hook, — U.S. -, 130 S.Ct. 13,18-19 (2009) (per curiam). Third, and perhaps worst of all, the majority accords no deference to the California Supreme Court’s superior expertise in determining what constitutes competent representation among the members of its bar and the likely consequences (or lack thereof) of any deficient performance. Contra Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933,167 L.Ed.2d 836 (2007). Few state court judgments can withstand even one such error, see, e.g., Jones v. Ryan, 583 F.3d 626 (9th Cir.2009); Libberton v. Ryan, 583 F.3d 1147 (9th Cir.2009); Gilley v. Morrow, 246 Fed.Appx. 519 (9th Cir.2007) (unpublished); Stankewitz v. Woodford, 365 F.3d 706 (9th Cir.2004); see also cases cited pp. 692, 711 infra, but in combination they are deadly. I had hoped that our en banc court would sweep away these mistakes and bring our caselaw into conformity with AEDPA. Instead, the majority repeats and magnifies the errors in these prior cases so that they will be very difficult, probably impossible, for us to correct. This perpetuates a habeas regime where few death sentences are safe from federal judges who know ever so much better than those ignorant state judges and lawyers how capital trials ought to be conducted. Because I don’t believe we are the ultimate font of wisdom on such matters, I must dissent. Background Following his conviction and sentence, Pinholster (represented by two new lawyers) took a mandatory appeal to the California Supreme Court. In a painfully thorough opinion that takes up 62 pages of the Pacific Reporter, Justice Mosk, writing for a unanimous court, affirmed. People v. Pinholster, 1 Cal.4th 865, 4 Cal.Rptr.2d 765, 824 P.2d" } ]

[ { "docid": "4243156", "title": "", "text": "an election held for that purpose, should declare in favor of such subscription. It, however, appeared that after the people had voted in favor of the subscription, but before any subscription was in fact made, a new constitution for Indiana went into operation, containing, among others, the provision that “ no county shall subscribe for stock in any incorporated company, unless the same be paid for at the time of such subscription; nor shall any county loan its credit to any incorporated company; nor borrow money for the purpose of taking stock in any such company.” It was argued in- that case, that as the statute under which ■the election was held made it the duty of the commissioners to subscribe for the stock and issue county bonds in payment thereof, the right of the railroad company to receive the bonds became complete, and perfect when a majority of legal voters declared in favor of- the subscription; and that such right was not, and consistently with, the contract clause of the national Constitution could not be, affected by any subsequent changes in the organic law of the State. To that position this court was unable to give its assent. The reluctance expressed in its opinion is liot ■ to be construed as implying doubt as to the correctness of .the legal conclusions there reached, but only as referring to the fact that the bonds in suit were in the hands of those who, for aught that appeared, had purchased them in the belief that they were valid obligations of the county. We held in that case that the popular vote did not itself create a vested right in the railroad company to the bonds, and that a subscription was necessary to create a contract binding the county to issue bonds in payment of the stock, and binding the company to issue stock for the bonds. “ Until the subscription is made,” said Mr. Justice Nelson, speaking for the whole court, “ the contract is unexecuted and obligatory upon neither party.” Hence, the new State Constitution was held to govern the" } ]

[ { "docid": "22899744", "title": "", "text": "of 1869 does not prohibit municipal subscriptions to the stock of railroad companies under all circumstances, but only forbids the legislature from authorizing them except where two-thirds of the qualified voters of the municipality assent thereto. “ It is not an open question in this State,” said the Supreme Court of Mississippi, “that the legislature may authorize a county or town to aid a railroad. That power was held to exist under the former Constitution, and the presept Constitution distinctíy recognized it.” Art. 12, § 4.....“ If it were not for the constitutional restriction, the legislature could authorize a county, city, or town to aid in any of these modes railroads, or other public enterprises, without the assent of the qualified voters.” N. O., &c., Railroad Co. v. McDonald, 53 Miss. 246. Thus the Constitution recognized subscriptions to railroad companies as within the scope of the powers which municipal corporations might exercise under legislative sanction. \"While the legislature could not, after the adoption of the Constitution of 1869, have legalized a municipal subscription assented to by a less majority of legal voters than is prescribed in that instrument, its power, by retrospective enactment, to confirm and legalize a municipal subscription to the stock of a railroad corporation to which the constitutional majority of electors had assented at an election of which due notice was given, cannot we think, be successfully disputed. Since what was done in this case by the constitutional majority of qualified electors, and by the board of supervisors of the county, would have been legal and binding upon the county had it been done under legislative authority previously conferred, it is not perceived why subsequent legislative ratification is not, in the absence of constitutional restrictions upon -.such legislation, equivalent to original authority. In Sykes v. Mayor, &c., of Columbus, 55 Miss. 115, 137, it was held that, after the Constitution of 1869 took effect, the legislature could not, by retrospective enactment, make valid an issue of municipal bonds executed prior to the adoption of that instrument without legislative authority; because, said the court, “the measure of its" }, { "docid": "13898782", "title": "", "text": "make the subscription and issue bonds in payment of it was expressly affirmed in that case — indeed, it was not there disputed. So far from the Belo case turning, in part, upon the ratifying act of 1868, the court distinctly adjudged that the bonds were valid in the hands of bona fide holders under the ordinance .of 1868 without the aid of the act of August 11, 1868. A further reference must be made to the Call case. It was there said (p. 320) that “ the ratification of the constitution on the 24th day of April, 1868, when it went into effect for all domestic, purposes, annulled all special powers remaining unexecuted and not granted in strict accordance with its requirements.” This view was again expressed in Commissioners v. Payne, 123 N. C. 432, 486-7. By Article 7, section 7, of the state constitution, it was provided that “ no county, city, town or municipal corporation shall contract any debt, pledge its faith, or loan its credit, nor shall any tax be levied or collected by any officers of the same, except for the necessary expenses thereof, unless by a vote of a majority of the qualified voters therein.” If the. state'court intended to adjudge in the Call and Payne cases that no municipal subscription to the stock of a railroad company could be made after the constitution of 1868 took effect, except in conformity to section 7, of Article 7, we perceive no reason to doubt the correctness of such interpretation of- that instrument; for it could not be that any unexecuted provision of the ordinance of 1868 inconsistent with the state constitution could be executed. Aspinwall v. Commissioners, 22 How. 364; Wadsworth v. Supervisors, 102 U. S. 534, 537; Norton v. Brownsville, 129 U. S. 479, 490. But if it was intended to say that the state constitution abrogated all authority previously given to make such municipal' subscriptions, and that no such subscriptions could be made except pursuant.to a new statute passed in conformity with the requirements of section 14 of Article 2, we are constrained" }, { "docid": "13819378", "title": "", "text": "the 30th of December, 1871, under the direction and supervision of the mayor and aldermen; and, at the election, largely more than. two-thirds of all the qualified voters of the city voted in favor of the subscription and the issuing of the bonds, and assented thereto, and thereby authorized and directed the mayor and aldermen to make the subscription, and to issue and deliver thex bonds. After the election, to wit, on the 1st of January, 1872, the defendant, in pursuance of the vote, subscribed for $75,000 of the capital stock of the company, and agreed and undertook to issue its bonds in payment thereof as sóon as the same could be prepared, and received the regular .and proper certificates therefor, which it still holds and has never surrendered or offered to surrender. By an Act of the Legislature of Mississippi, approved March 16, .1872, Laws of 1872, ch. 75, p. 313, entitled “An Act to facilitate the construction of the Selma, Marion and Memphis Railroad,’’ it was provided, § 4, “ that ail subscriptions to the capital stock of the said Selma, Marion and Memphis Railroad Company, made by any county, city, or town in this State, which were not made in violation of the Constitution of this State, are hereby legalized, ratified, and confirmed.” By another act of that Legislature, approved April 19,1872, Laws of 1872, ch. 102, p. 120, it was provided, § 1, “ that any county through which any railroad will pass, incorporated city or town along the line of any railroad, or contiguous thereto, may subscribe to the capital stock of said company in any sum; ” and § 2, “ that no such subscription shall be made until the question has been submitted to the legal voters of such county or counties, city or cities, incorporated town or towns, in which the subscription is proposed to be made,-” and § 3, that if it.shall appear that two-thirds of the-legal voters of such county, city, or town have voted for subscription, the subscription shall be made, and- bonds' not having more than twenty years" }, { "docid": "22688968", "title": "", "text": "of all the justices in commission shall be present and a majority of those present shall concur therein. The county court met on the 15th of November, 1869, for the first time after the passage of the act of March 9,1867, and assumed its legitimate functions as the governing agency of the county. On the 11th of April, 1870, it again met and established the rate of taxation for the Mississippi River Railroad bonds at twenty cents on each one hundred dollars’ worth of taxable property. At its meeting on the 16th of that month it ordered that the tax for those bonds should be ten cents on each one hundred dollars’ worth of property. At the meeting on the 11th there were twenty two justices of the peace present, of whom eighteen voted for the tax levy, and on the 16th only twelve justices were present. There were in the county at that time forty five justices in commission. There were no other meetings of the county court until after May 5,1870, on which day the new constitution of Tennessee went into effect, which declares that, “ The credit of no county, city, or town shall be given or loaned to or in aid of any person, company, association or corporation, except upon an-election to be first held by the qualified voters of such county, city, or town, and the assent of three-fourths of the votes cast at said election. Nor shall any county, city, or town become a stockholder with others in any company, association or corporation, except upon a like election and the assent of a like majority.” By this provision of the constitution the county court, as thus seen, was shorn of any power to order a subscription to stock of any railroad company without the previous assent of three-fourths of the voters of the county cast at an election held by its qualified voters, and, of course, it could not afterwards, without such assent, give validity to a subscription previously made by the commissioners: It could not ratify the acts of an unau- thorized body." }, { "docid": "22688970", "title": "", "text": "To ratify is to give validity to the act of another, and implies that the person or body ratifying has at the time power to do the act ratified. As we said in Marsh v. Fulton County, 10 Wall. 676, 684, where it was contended, as in this case, that certain bonds of that county, issued without authority, were ratified by various acts of its supervisors : “ A ratification is, in its effect upon the act of 'an agent, equivalent to the possession by him of a previous authority. It operates upon the act ratified in the same manner as though the authority of the agent to do the act existed originally. It follows that a ratification can only be made when the party ratifying possesses the power to perform the act ratified. The supervisors possessed no authority to make the subscription or issue the bonds in the first instance without the previous sanction of the qualified voters of the county. The supervisors in that particular were the mere agents of the county. They could not, therefore, ratify a subscription without a vote of the county, because they could not make a subscription in the first instance without such authorization. It would be absurd to say that they could without such vote, by simple expressions of approval, or in some other indirect way, give validity to acts, when they were directly in terms prohibited by statute from doing those acts until after such vote was had. That would be equivalent to saying that an agent, not having the power to do a particular act for his principal, could give validity to such act by its indirect recognition.” 10 Wall. 676, 684. See also County of Daviess v. Dickinson, 117 U. S. 657; McCracken v. city of San Francisco, 16 Cal. 591, 623. .No election was held by the voters of Shelby County with reference to the subscription for stock of the Mississippi River Railroad Company after the new constitution went into effect. No subsequent proceedings, resolutions, or expressions of approval of the county court with reference to the subscription" }, { "docid": "22688972", "title": "", "text": "made by the county commissioners, or to the bonds issued by them, could supersede the necessity of such an election. Without this sanction the county court could, in no manner, ratify the unauthorized act, nor could it accomplish that result by acts which would estop it from asserting that no such election was had. The-requirement of the law could not, in this indirect way, be evaded. The case of Aspinwall v. Commissioners of Daviess County, 22 How. 364, is directly in point on this subject. There the charter of the Ohio and Mississippi Railroad Company, created by the legislature of Indiana in 1848, as amended in 1849, authorized the commissioners of a county, through which the road passed, to subscribe for stock and issue bonds, provided a majority of the qualified voters of the county voted on the first of March, 1849, that this should be done. The election was held on that day, and a majority of the voters voted that a subscription should be made. In September, 1852, the board of commissioners, pursuant to the acts and election, subscribed for 600 shares of the stock of the railroad company, amounting to $30,000, and in payment of it issued thirty bonds of $1000 each, signed and sealed by the president of the board and attested by the auditor of the county, and delivered the same to the company. These bonds drew interest at the rate of six per cent, per annum, for which coupons were attached. The plaintiffs became the holders of sixty of these coupons, and upon them the suit was brought against the commissioners of the county. After the subscription was voted, but before it was made or the bonds issued, the new constitution of.Indiana went into effect, which contained the following provision: “No county shall subscribe for stock in any incorporated company unless the same be paid for at the time of such subscription, nor shall any 'county loan its credit to any incorporated company, nor borrow money for the purpose of taking stock in any such company.” Art. 10, section 6. This provision was set" }, { "docid": "13819379", "title": "", "text": "to the capital stock of the said Selma, Marion and Memphis Railroad Company, made by any county, city, or town in this State, which were not made in violation of the Constitution of this State, are hereby legalized, ratified, and confirmed.” By another act of that Legislature, approved April 19,1872, Laws of 1872, ch. 102, p. 120, it was provided, § 1, “ that any county through which any railroad will pass, incorporated city or town along the line of any railroad, or contiguous thereto, may subscribe to the capital stock of said company in any sum; ” and § 2, “ that no such subscription shall be made until the question has been submitted to the legal voters of such county or counties, city or cities, incorporated town or towns, in which the subscription is proposed to be made,-” and § 3, that if it.shall appear that two-thirds of the-legal voters of such county, city, or town have voted for subscription, the subscription shall be made, and- bonds' not having more than twenty years to run to maturity be. issued to the company therefor.- On the 26th of April, 1872, the defendant, in payment of the subscription, executed and delivered to the company its coupon bonds, under its corporate seal, to the amount of $75,000, bearing date January 1, 1872, and.pay&blé January 1, 1887, with interest at the rate of eight per cent, per annum, payable semi-annually, and in the form before set forth, with coupons for the semi-annual interest attached, of the following form: “ City ot Holly Springs, MARSHALL CouNTY, MISSISSIPPI, 'January 1 si, 1872. $-The Cjjy of Holly Springs acknowledges to owe the sum qf-dollars, payable to bearer, on the first day of 18 , at the office of the Holly Springs Saving and Insurance Company, Holly Springs, Mississippi, for six months’ interest on bond No. (No. of bond.) Lewis Beehler, Treasurer of the Gity of Hoik/ Springs.” After the issuing and delivery of' the bonds to the company, the defendant, for several years, continued to levy and collect taxes for1 the payment of the interest" }, { "docid": "22909678", "title": "", "text": "as soon as the stock is subscribed for, and is to be the levy of a tax sufficient to meet the instalments of subscription as made, and the costs and expenses of collection, subject to the provision of section 1154, that, although the levy of the tax is made, not more than one-third of the stock subscription can be collected in any one year. It is solely to anticipate the collection of the tax, when it is collectible by virtue of the terms of the levy, that the warrants are authorized, by section 1160, to be issued; and there is nothing in the statute which contemplates that the warrants shall be made payable at any time later than the time fixed for the collection of the instalments of. the tax. These provisions exclude the power of issuing such negotiable bonds as were issued in this case. It is contended by the plaintiffs that express authority for issuing the bonds in question is to be found in an act of the legislature of Tennessee, approved January 23, 1871, being chapter 50 of the Acts of 1870-71. ' In 1870, a new constitution was adopted in Tennessee, section 29 of Article II. of which reads as follows: “ Sec. 29. The general assembly shall have power to authorize the several counties and incorporated towns in this State to impose taxes for county and corporation purposes respectively, in such manner as shall be prescribed by law; and all property shall be taxed according to .its value, upon the principles established in regard to state taxation. But the credit of no county, city, or town shall be given or loaned to or in aid of any person, company, association, or corporation, except upon an election to be first held by the qualified voters of such county, city, or town, and the assent of three-fourths of the votes cast at said election. Nor shall any county, city, or town become a stockholder with others in any company, association, or corporation, except upon a like election and the assent of a like majority. But the counties" }, { "docid": "22688971", "title": "", "text": "could not, therefore, ratify a subscription without a vote of the county, because they could not make a subscription in the first instance without such authorization. It would be absurd to say that they could without such vote, by simple expressions of approval, or in some other indirect way, give validity to acts, when they were directly in terms prohibited by statute from doing those acts until after such vote was had. That would be equivalent to saying that an agent, not having the power to do a particular act for his principal, could give validity to such act by its indirect recognition.” 10 Wall. 676, 684. See also County of Daviess v. Dickinson, 117 U. S. 657; McCracken v. city of San Francisco, 16 Cal. 591, 623. .No election was held by the voters of Shelby County with reference to the subscription for stock of the Mississippi River Railroad Company after the new constitution went into effect. No subsequent proceedings, resolutions, or expressions of approval of the county court with reference to the subscription made by the county commissioners, or to the bonds issued by them, could supersede the necessity of such an election. Without this sanction the county court could, in no manner, ratify the unauthorized act, nor could it accomplish that result by acts which would estop it from asserting that no such election was had. The-requirement of the law could not, in this indirect way, be evaded. The case of Aspinwall v. Commissioners of Daviess County, 22 How. 364, is directly in point on this subject. There the charter of the Ohio and Mississippi Railroad Company, created by the legislature of Indiana in 1848, as amended in 1849, authorized the commissioners of a county, through which the road passed, to subscribe for stock and issue bonds, provided a majority of the qualified voters of the county voted on the first of March, 1849, that this should be done. The election was held on that day, and a majority of the voters voted that a subscription should be made. In September, 1852, the board of commissioners, pursuant" }, { "docid": "23025940", "title": "", "text": "change, modify, enlarge, or restrain them; securing, however, the property for the use of those for whom, and at whose expense, it was purchased. (See also pages 693, 694.) It would be difficult to mention a subject of legislation of more public concern, or in a greater degree affecting the good government of the county, than that involved in the present inquiry. The power conferred upon the board of commissioners by the provisions in the charter, among other things, embraced the power of taxation, this being the ultimate resort of paying both the principal and interest of the debt to be incurred in the subscription and issuing of the bonds. The second question presented, upon which the judges differed, is as follows: Whether, by virtue of said acts, and of the said election in the declaration set forth, the Ohio and Mississippi Railroad Company acquired any such right to the subscription of the defendants as would be protected.by the Constitution of the United States against the new Constitution of Indiana, which took effect the 1st November, 1851. The acts of 1848 and 1849, already referred to, made it the duty of the board of commissioners to subscribe for the stock, if a majority of the qualified voters at an election determined in favor of the subscription. The election took place on the first Monday of March, 1849, when a majority of the votes was cast for the subscription. The Constitution of Indiana took effect 1st November, 1851. But the subscription was not made till the 10th September, 1852, and the bonds were issued after this date. It is insisted that the contract of subscription became complete when, at the election, a majority of the votes was cast in its favor, and did not require the form of a subscription on the books for the stock of the railroad company to make it obligatory upon the parties; and which, if true, it is agreed the contract would be protected within the Constitution of the United States, as it would then have been complete before the constitutional prohibition of Indiana. But the" }, { "docid": "22688974", "title": "", "text": "up against the validity of the bonds and coupons; and the question arose whether, under the charter of the company and its amendment, the right to the county subscription became, so vested in the company as to exclude the operation of the new constitution. The court held that the provisions of the charter authorizing the commissioners to subscribe conferred a power upon a public corporation, which could be modified, changed, enlarged, or restrained by the legislature; that by voting for the subscription no contract was created which prevented the application of the new constitution; that the mere vote to subscribe did not of itself form a contract with the company within the protection of the Federal Constitution ; that -until the subscription was actually made no contract was executed ; and that the bonds, being issued in violation of the new constitution of the State, were void. That constitution withdrew from the county commissioners all authority to make a subscription for the stock of an incorporated company, except in the manner and under the circumstances prescribed by that instrument, even though a vote for such subscription had been previously had, and a majority of the voters had voted for it. The doctrine of this case was reaffirmed in Wadsworth v. Supervisors, 102 U. S. 534. It follows that no ratification of the subscription to the Mississippi River Railroad Company, or of the bonds issued for its payment, could be made by the county court subsequently to the new constitution of Tennessee, without the previous assent of three-fourths of the voters of the county, which has never been given. The question recurs whether any ratification can be inferred from the action of the County Court on the 11th and 16th of April, 1810, which was had before that Constitution took effect. At the meeting of the court on those days a rate of tax was established to be levied for the payment of the bonds, but it appears from its records that on both days less than a majority of the justices of the county were present; and the County Court" }, { "docid": "23025941", "title": "", "text": "November, 1851. The acts of 1848 and 1849, already referred to, made it the duty of the board of commissioners to subscribe for the stock, if a majority of the qualified voters at an election determined in favor of the subscription. The election took place on the first Monday of March, 1849, when a majority of the votes was cast for the subscription. The Constitution of Indiana took effect 1st November, 1851. But the subscription was not made till the 10th September, 1852, and the bonds were issued after this date. It is insisted that the contract of subscription became complete when, at the election, a majority of the votes was cast in its favor, and did not require the form of a subscription on the books for the stock of the railroad company to make it obligatory upon the parties; and which, if true, it is agreed the contract would be protected within the Constitution of the United States, as it would then have been complete before the constitutional prohibition of Indiana. But the court is unable to concur in this view. It holds, that a subscription was necessary to create a contract binding upon the county, on one side, to take the stock and pay in the bonds; and upon the other, to transfei the stock, and receive the bonds for the same. Until the'subscription is made, the contract is unexecuted, and obligatory upon neither party. We have arrived at the conclusion that both of the questions presented to us by the court below must be answered in the negative with some reluctance, as, for aught that appears in the case, the subscription to the stock by the board of commissioners was made and the bonds issued in.good faith to the railroad company, and also sold by it, and purchased by the plaintiff in confidence of their validity; but, after the best consideration the court has been able to give the case, it has been compelled to hold, for the reasons above stated, that the subscription was made, and the bonds issued, in violation of the Constitution of" }, { "docid": "22688969", "title": "", "text": "day the new constitution of Tennessee went into effect, which declares that, “ The credit of no county, city, or town shall be given or loaned to or in aid of any person, company, association or corporation, except upon an-election to be first held by the qualified voters of such county, city, or town, and the assent of three-fourths of the votes cast at said election. Nor shall any county, city, or town become a stockholder with others in any company, association or corporation, except upon a like election and the assent of a like majority.” By this provision of the constitution the county court, as thus seen, was shorn of any power to order a subscription to stock of any railroad company without the previous assent of three-fourths of the voters of the county cast at an election held by its qualified voters, and, of course, it could not afterwards, without such assent, give validity to a subscription previously made by the commissioners: It could not ratify the acts of an unau- thorized body. To ratify is to give validity to the act of another, and implies that the person or body ratifying has at the time power to do the act ratified. As we said in Marsh v. Fulton County, 10 Wall. 676, 684, where it was contended, as in this case, that certain bonds of that county, issued without authority, were ratified by various acts of its supervisors : “ A ratification is, in its effect upon the act of 'an agent, equivalent to the possession by him of a previous authority. It operates upon the act ratified in the same manner as though the authority of the agent to do the act existed originally. It follows that a ratification can only be made when the party ratifying possesses the power to perform the act ratified. The supervisors possessed no authority to make the subscription or issue the bonds in the first instance without the previous sanction of the qualified voters of the county. The supervisors in that particular were the mere agents of the county. They" }, { "docid": "4243157", "title": "", "text": "be, affected by any subsequent changes in the organic law of the State. To that position this court was unable to give its assent. The reluctance expressed in its opinion is liot ■ to be construed as implying doubt as to the correctness of .the legal conclusions there reached, but only as referring to the fact that the bonds in suit were in the hands of those who, for aught that appeared, had purchased them in the belief that they were valid obligations of the county. We held in that case that the popular vote did not itself create a vested right in the railroad company to the bonds, and that a subscription was necessary to create a contract binding the county to issue bonds in payment of the stock, and binding the company to issue stock for the bonds. “ Until the subscription is made,” said Mr. Justice Nelson, speaking for the whole court, “ the contract is unexecuted and obligatory upon neither party.” Hence, the new State Constitution was held to govern the case, and from the time of its adoption to have withdrawn, from the county commissioners all authority to make subscriptions to the stock of incorporated CQmpanies, except in the manner and under the circumstances prescribed by that instrument.- Applying the doctrines announced in Aspinwall, &c. v. Commissioners, &c., to the present case, it is clear that there was no binding agreement or contract between the railroad com pany and the county of Eau Claire, by which the latter became legally bound, through its board of Supervisors, to execute and deliver bonds to aid in the construction of the road from Tomah to-Lake St; Croix. The act of .April 1,1864, neither in express words nor by necessary implication, made it imperative .upon the board of supervisors to issue bonds -in pursuance of the popular vote. The act was an enabling one, and its legal effect was to invest the board with power to supplement the expressed will of-the people by an issue of bonds. We find-nothing in its provisions justifying the conclusion that the popular vote" }, { "docid": "22688935", "title": "", "text": "county commissioner. 2d. That there could not be any such' de facto officers, as there was no such office known to the laws, and, therefore, that the subscription was made and the bonds were issued without authority and are void ; and 3d. That the action of the commissioners was never ratified, and was incapable of ratification by the county. Upon the first question presented, that which relates to the lawful existence and authority of the county commissioners, we are relieved from the necessity of passing. That has been authoritatively determined by the Supreme Court of Tennessee, and is not open for consideration by us. From an early period in the history of the State — indeed, from a period anterior to the adoption of her constitution of 1796 —to the passage of the act of March 9,1867, the administration of the government in local matters in each county was lodged in a county court, or quarterly court as it was sometimes called, composed of justices of the peace, elected in its different districts. . The constitution of 1796 recognizes that court as an existing tribunal, and the constitution of 1834 prescribes the duties of the justices of the peace composing it. This county court alone had the power to make a county subscription to the Mississippi River Railroad Company, to issue bonds for the amount, and to levy taxes for its payment, unless the act of March 9, 1867, invested the board of commissioners with-that authority. Statutes of 1867, ch. 48, § 6. That act created the board, and provided that it should consist of five persons, residents of the county for not less than two years, each to serve for the period of five years and until his successor should be elected and qualified. The 25th section vested in it all the powers and duties then possessed by the quarterly court of the county, and in addition thereto the authority “ to subscribe stock in railroads which the county court of Shelby County has been authorized by general and special law to subscribe, and under the same conditions" }, { "docid": "22688975", "title": "", "text": "prescribed by that instrument, even though a vote for such subscription had been previously had, and a majority of the voters had voted for it. The doctrine of this case was reaffirmed in Wadsworth v. Supervisors, 102 U. S. 534. It follows that no ratification of the subscription to the Mississippi River Railroad Company, or of the bonds issued for its payment, could be made by the county court subsequently to the new constitution of Tennessee, without the previous assent of three-fourths of the voters of the county, which has never been given. The question recurs whether any ratification can be inferred from the action of the County Court on the 11th and 16th of April, 1810, which was had before that Constitution took effect. At the meeting of the court on those days a rate of tax was established to be levied for the payment of the bonds, but it appears from its records that on both days less than a majority of the justices of the county were present; and the County Court under those circumstances could not even directly have authorized the subscription. The levy of a tax for the payment of the bonds, when a less number of justices were present than would have been necessary to order a subscription, could not operate as a ratification of a void subscription. It is unnecessary to pursue this subject further. We are satisfied that none of the positions taken by the plaintiff can be sustained. The original invalidity of the acts of the commissioners has never been subsequently cured. It may be, as alleged, that the stock of the railroad company, for which they subscribed, is still held by the county. If so, the county may, by proper proceedings, be required to surrender it to the company, or to pay its value; for, independently of all restrictions upon municipal corporations, there is a rule of justice that must control them as it controls individuals. If they obtain the property of others without right, they must return it to the true owners, or pay for its value. But questions" }, { "docid": "11763821", "title": "", "text": "bonds themselves mature;” and further, that “this is one of four hundred bonds, all of the same denomination and rate of interest, issued by Tipton County in payment of a subscription of $200,000 to the Mississippi River Railroad Company, made by the county court of said county, under the authority of the acts above recited, — these bonds, transferable by delivery and redeemable in five years at the rate of $40,000 a year, commencing Jan. 1, 1870.” When the foregoing acts were passed there was in force a general statute, under the provisions of which counties, incorporated cities, and towns could subscribe stock in railroads, upon certain terms and conditions, one of which was the previous approval of the legal voters of such county, city, or.town., at an election called and held for the ascertainment of their will. These special acts, in connection with the act of Nov. 5, 1867, for the benefit of the Mississippi River Railroad Company, authorized the county courts of counties on the line of that company's road (among which was the county of Tipton) to subscribe to its capital stock, without requiring a submission of the question of subscription to a popular vote, —the majority of the justices in commission being present, and a majority of . those present concurring. The validity of those acts is questioned here, as it was in the court below, upon the ground that they are unconstitutional, and, therefore, gave no authority to make the subscription, or issue bonds in payment thereof. The provisions of the Constitution of Tennessee (that of 1834), to which, it is supposed, they are repugnant, are sect. 8 of art. 1, and sect. 7 of art. 11; the first of which declares that “ no freeman shall be taken, or imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life or property, except by the judgment of his peers, or the law of the land; ” and the last of which provides that “ the legislature shall have no power to suspend" }, { "docid": "22910167", "title": "", "text": "of county commissioners on coupons due on the bonds that had been issued and which had been bought by a bona fide purchaser, the ■record showed an order for the election made thirty-three days before it was to be held, and that subsequently to the election the board canvassed the returns and certified that there was a majority of the voters in favor of the proposition, and that the board had made such vote the basis of their action in subscribing to the stock and issuing the bonds to the company. The bonds recited on their face that they were issued “in pursuance to the vote of the. electors of Anderson County, of September 13, 1869.” It was held that the statement in the bonds as to the vote was equivalent to a statement that the vote was one lawful and regular in form, such as the law then in force required as to prior notice, and that .as' respected the plaintiff, evidence by the defendant to show less than thirty days’ notice of the election could not avail. At page 238 the court said: “ The bond recites the wrong act, but if that part of the recital be rejected, there remains the statement that the bond ‘ is executed and issued’ ‘in pursuance to the vote of .the electors of Anderson County, of September 13, 1869.’ The act of 1869 provides that when the assent of a majority of those voting at ■ the election is given to the subscription to the stock, the county, commissioners shall make the subscription, and shall pay for- it, and for the stock thereby agreed to be taken, by issuing to the company the bonds of the county. The provision of section 51 is ‘ that when such assent shall have been given,’ it shall be the duty of the county commissioners to make the subscription. What is the meaning of the words ‘ such assent ? ’ They mean the assent of the prescribed majority, as the result of an election held in pursuance of such notice as the act prescribes." }, { "docid": "22688973", "title": "", "text": "to the acts and election, subscribed for 600 shares of the stock of the railroad company, amounting to $30,000, and in payment of it issued thirty bonds of $1000 each, signed and sealed by the president of the board and attested by the auditor of the county, and delivered the same to the company. These bonds drew interest at the rate of six per cent, per annum, for which coupons were attached. The plaintiffs became the holders of sixty of these coupons, and upon them the suit was brought against the commissioners of the county. After the subscription was voted, but before it was made or the bonds issued, the new constitution of.Indiana went into effect, which contained the following provision: “No county shall subscribe for stock in any incorporated company unless the same be paid for at the time of such subscription, nor shall any 'county loan its credit to any incorporated company, nor borrow money for the purpose of taking stock in any such company.” Art. 10, section 6. This provision was set up against the validity of the bonds and coupons; and the question arose whether, under the charter of the company and its amendment, the right to the county subscription became, so vested in the company as to exclude the operation of the new constitution. The court held that the provisions of the charter authorizing the commissioners to subscribe conferred a power upon a public corporation, which could be modified, changed, enlarged, or restrained by the legislature; that by voting for the subscription no contract was created which prevented the application of the new constitution; that the mere vote to subscribe did not of itself form a contract with the company within the protection of the Federal Constitution ; that -until the subscription was actually made no contract was executed ; and that the bonds, being issued in violation of the new constitution of the State, were void. That constitution withdrew from the county commissioners all authority to make a subscription for the stock of an incorporated company, except in the manner and under the circumstances" }, { "docid": "8981292", "title": "", "text": "been submitted to a vote of the qualified voters of Scotland County, and that, in\" determining the demurrer, the court should consider that fact, as if it had been averred in the complaint. It was also agreed that the court should consider as facts admitted the articles of consolidation between the Iowa Southern Railway Company and the Alexandria and Nebraska City Railroad Company, and the above orders of the county court of Scotland County. It was held that the privilege given to the Alexandria and Bloomfield Railroad Company, by its charter of 1857, of receiving county subscriptions, was not extinguished by the subsequent consolidation in 1870 of 'that company with other companies, but passed with its other rights and privileges into-the new condition of existence arising from such consolidation; that, in making the subscription in that case, which is the identical subscription here in question, the county court acted “ as the representative authority of the county itself, officially invested with all the discretion necessary to be exercised under the change of circumstances brought about by the consolidation ; ” that the subscription was binding upon the county; and that the bonds issued m payment were valid obligations. It was also distinctly ruled, in accordance with County of Callaway v. Foster, 93 U. S. 567, and with previous decisions of the Supreme Court of Missouri, that the prohibition in the state constitution of 1865, of municipal subscriptions to the stock of, or loans of credit to, companies, associations or corporations, without the previous assent of two-thirds of the qualified voters at a regular or special election, had the effect to'limit the future exercise of legislative power, but did not take away any authority granted before that constitution went into operation. The doctrines of that case were reaffirmed in County of Henry v. Nicolay, 95 U. S. 619, 624, (1877;) County of Schuyler v. Thomas, 98 U. S. 169, 173, (1878;) County of Cass v. Gillett, 100 U. S. 585, 592, (1879;) and County of Ralls v. Douglass, 105 U. S. 728, 731, (1881) — all cases arising in the State" } ]

[ { "docid": "21352579", "title": "", "text": "conviction. I. Applicability of the statute The defendant argues that when government agents took the package containing the emeralds out of the usual course of the mails on Wednesday, November 4, 1964, photographed and made a sketch of it, took it to the General Post Office where a fluorescent dye was injected into it and did not return it to the Mail Division of the United States Customs until Friday, November 6, “it lost its character as mail.” However, it has long been held under similar statutes that decoy letters to fictitious addresses, which are intended to detect mail thefts, constitute mail, e. g., Goode v. United States, 159 U.S. 663, 16 S.Ct. 136, 40 L.Ed. 297 (1895). Genuine mail temporarily withdrawn from its usual course and treated by government agents for the same purpose is also none the less mail. See Ennis v. United States, 154 F. 842 (2d Cir. 1907). Defendant also contends that the statute is not applicable because the package when last seen was near the desk of a Customs employee, from which it was supposed to have been stolen, and was not, he argues, in the custody of the Post Office Department. However, the Government cites a group of regulations that authorize clearance and inspection of overseas mail by the United States Customs before ultimate delivery, and there was evidence that defendant’s desk was in the usual channel of such mail. Thus, the statute was applicable since the package was “stolen, taken, embezzled, or abstracted” from a “mail route or other authorized depository for mail matter.” 18 U.S.C. § 1708 (1964); see Rosen v. United States, 245 U.S. 467, 472-473, 38 S.Ct. 148, 62 L.Ed. 406 (1918). II. Sufficiency of the evidence [-3] The defendant’s contention that the evidence was too scanty and circumstantial to justify conviction is frivolous in the light of the overwhelming evidence of guilt produced at the trial. Government agents testified that they watched the progress of the package from concealed peepholes in a gallery overlooking the Mail Division floor until it disappeared, that other undercover agents working in the office" } ]

[ { "docid": "2375692", "title": "", "text": "the instant case there is nothing to indicate that the landlady was an authorized custodian of the tenant’s mail pursuant to any postal regulation or that the window sill of her apartment was an authorized mail depository. Maxwell v. United States, 8 Cir., 235 F.2d 930, cited by the government, turns on the express language utilized in 18 U.S.C.A. § 1702 which serves to extend the protective mantle of that particular section to embrace matter which has been in postal custody or in an authorized depository and is intercepted “before it has been delivered to the person to whom it was directed”. § 1702 appears to be primarily directed at an invasion of privacy “with design to obstruct the correspondence, or to pry into the business or secrets of another” and it encompasses a latitude commensurate with that purpose. But in our opinion it is obvious from the differences in the specific language and terminology employed that § 1708 is not intended to and does not reach as far as § 1702 extends. In United States v. McCready, C.C., 11 F. 225, also cited by the government, the provision involved was one similar to § 1702 and contained like language expressing equal breadth of scope with respect to its application. Smith v. United States, 5 Cir., 343 F.2d 539, the remaining case relied upon by the government, does involve a § 1708 conviction, but it is of no aid to the government’s position. In Smith “[t]here was ample evidence that the mail was in the hotel mailbox” — which by postal regulation was an authorized depository for mail matter — when it was stolen therefrom. This factor is relied upon in Smith to distinguish the factual situations involved in some of the cases here relied upon by the defendant, including Huebner v. United States, 6 Cir., 28 F. 929, where the letter was taken from an open pasteboard box kept on a window sill located on the second floor and far removed from the entrance to the building, and the premises were under the control of a single addressee; United" }, { "docid": "21352590", "title": "", "text": "his right to obtain counsel is indicative of his status as a person arrested or “accused,” rather than being merely investigated for the crime. We conclude that the district court was not clearly in error in holding that the search of defendant’s person and home followed, and was incident to, a lawful arrest, and was, therefore, reasonable under the Fourth Amendment. Affirmed. . “Theft or receipt of stolen mail matter generally “Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; or * * * “Whoever buys, receives, or conceals, or unlawfully has in his possession, any letter, postal card, package, bag, or mail, or auy article or thing contained therein, which has been so stolen, taken, embezzled, or abstracted, as herein described, knowing the same to have been stolen, taken, embezzled, or abstracted— “Shall be fined not more than $2,000 or imprisoned not more than five years, or both. * * *” . Another count of the indictment alleged that defendant had stolen the package in violation of § 1708. This count was dismissed with the Government’s consent at the close of the taking of evidence. See United States v. Weeks, 327 F.2d 656 (2d Cir. 1963). . 39 C.F.R. §§ 151.1-.5 (1962 & 1965 Supp.) (Subchapter P — Importations; Part 151— Customs). . Under this rule “[a] person aggrieved by an unlawful search and seizure may move” for the suppression of the property seized as evidence; however, such a motion “shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds" }, { "docid": "22985411", "title": "", "text": "24, 1996 as Title II, Subtitle A of the Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132, 110 Stat. 1214, does not apply in this case because Title II provides that \"[t]he amendments made by [subtitle A] shall, to the extent constitutionally permissible, be effec tive for sentencing proceedings in cases in which the defendant is convicted on or after the date of enactment of this Act.” Section 211, 110 Stat. 1214, 1241, 18 U.S.C. § 2248. Accordingly, statutory citations in this opinion refer to the provisions in effect before the passage of the MVRA. . Section 1708 reads as follows: Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; ... [shall be subject to criminal penalties]. . Section 2 provides that \"[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” . Section 2314 provides that: Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; ... Shall be [subject to criminal penalties]. . To the extent Comer argues that the testimony should not have been admitted under Rule 403 because \"its probative value [was] 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, he faces an uphill battle. This court reviews the disputed evidence in \"the" }, { "docid": "979112", "title": "", "text": "§ 1708. Theft or receipt of stolen mail matter generally. Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; or Whoever steals, takes, or abstracts, or by fraud or deception obtains any letter, postal card, package, bag, or mail, or any article or thing contained therein which has been left for collection upon or adjacent to a collection box or other authorized depository of mail matter; or Whoever buys, receives, or conceals, or unlawfully has in his possession, any letter, postal card, package, bag, or mail, or any article or thing contained therein, which has been so stolen, taken, embezzled, or abstracted, as herein described, knowing the same to have been stolen, taken, embezzled, or abstracted— Shall be fined not more than $2,000 or imprisoned not more than five years, or both. . § 4209. Young adult offenders. In the case of a defendant who has attained his twenty-second birthday but has not attained his twenty-sixth birthday at the time of conviction, if, after taking into consideration the previous record of the defendant as to delinquency or criminal experience, his social background, capabilities, mental and physical health, and such other factors as may be considered pertinent, the court finds that there is reasonable grounds to believe that the defendant will benefit from the treatment provided under the Federal Youth Corrections Act (18 U.S.C. Chap. 402) sentence may be imposed pursuant to the provisions of such act. § 5010. Sentence. (a) If the court is of the opinion that the youth offender does not need commitment, it may suspend the imposition or execution of" }, { "docid": "14514820", "title": "", "text": "Section 1702, and that its taking could not constitute a federal offense but was, if anything, an offense against the laws of the State. It seems to us, however, that the plain language of the statute discloses a clear intent on the part of Congress to extend federal protection over mail matter from the time it enters the mails until it reaches the addressee or his authorized agent. We can think of no sound reason for not giving to the statute the full meaning which its language imports or for denying to Congress the power to protect a letter from theft from the time it is mailed until it has actually been received by the person to whom it is addressed. Certainly the stealing of undelivered United States mail is a matter of national concern. The nearest approach to the instant case which has arisen in the Supreme Court is Rosen v. United States, 245 U.S. 467, 38 S.Ct. 148, 62 L.Ed. 406. That case involved letters stolen from unlocked mail boxes placed by tenants in the halls of buildings in which they had their places of business. The federal statute applicable in that case made it an offense to steal from any “authorized depository for mail matter * * * any letter * * A regulation of the Post Office Department had made the private mail boxes authorized depositories for mail matter. The Supreme Court, in affirming the conviction of the defendants in the Rosen case, said, 245 U.S. at page 473, 38 S.Ct. at page 151: “The suggestion that when the mail was deposited in a privately owned box it passed out of the custody of the government and beyond the protection of the law does not deserve extended notice. The letters which were stolen did not reach the manual possession of the persons to whom they were addressed, but were taken from an authorized depository over which the Act of Congress, by its express terms, extended its protection until its function had been served.” Here, the stolen letter did not reach the manual possession of the person" }, { "docid": "13931582", "title": "", "text": "mail” and thus eliminates the need for judicial determination of the termini of the statute’s protection. By tracking the language of the second and third paragraphs of § 1708, the trial court accurately and adequately defined the essential elements of the offense charged. See United States v. Ashford, 530 F.2d 792, 798 (8th Cir. 1976); Batsell v. United States, 403 F.2d 395 (8th Cir. 1968), cert. denied, 393 U.S. 1094, 89 S.Ct. 865, 21 L.Ed.2d 785 (1969). II. The appellant’s claim that the evidence is insufficient to support the conviction is likewise without merit. It is axiomatic that when evaluating the sufficiency of the evidence, the reviewing court must view the evidence in the light most favorable to the government. United States v. Shahane, 517 F.2d 1173, 1174 (8th Cir. 1975); United States v. Powell, 513 F.2d 1249, 1250 (8th Cir.), cert. denied, 423 U.S. 853, 96 S.Ct. 99, 46 L.Ed.2d 77 (1975). Upon review of the record, we find that there clearly was sufficient evidence to sustain the verdict. Finding no error in the proceedings below, we affirm the judgment of conviction. . § 1708. Theft or receipt of stolen mail matter generally Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; or Whoever steals, takes, or abstracts, or by fraud or deception obtains any letter, postal card, package, bag, or mail, or any article or thing contained therein which has been left for collection upon or adjacent to a collection box or other authorized depository of mail matter; or Whoever buys, receives, or conceals, or unlawfully has in his possession, any" }, { "docid": "2375690", "title": "", "text": "an envelope addressed to Walley, which was lying on the window sill in his mother’s apartment and when stopped by a police officer represented that he was Walley, the owner of the license. Walley had not authorized the defendant or anyone else to take his driver’s license. We agree with the defendant’s contentions that the evidence fails to establish that the license found in the defendant’s possession was stolen from the mail and that proof that it was so stolen or taken from the mail is a prerequisite to defendant’s conviction of the “unlawful possession” offense defined and proscribed in § 1708. The record fully establishes that the defendant stole Walley’s driver’s license and therefore possessed it with the knowledge that it was stolen. But the evidence, although viewed in a light most favorable to the government, merely shows that the defendant stole the license after the letter from which he abstracted it had been delivered to his mother, the landlady, who received or collected the mail for her tenants. But § 1708 in defining the offenses it interdicts enumerates the postal custody, mail receptacles, and “other authorized depository for mail matter” it is designed to protect against theft. The section evinces no congressional intent to afford federal protection to items beyond those points. The letter and its contents here purloined were not stolen from a custody or locus within the purview of § 1708 and consequently the evidence does not establish that the defendant was in possession of a “letter * * * or any article or thing contained therein * * * so stolen * * * as herein described”. The government’s reliance upon Rosen v. United States, 245 U.S. 467, 38 S.Ct. 148, 62 L.Ed. 406, is misplaced. That case involved letters containing checks which were stolen from boxes placed by tenants for the receipt of mail in the halls of the building in which they had their places of business. The boxes, which bore the names of their owners, were held to be authorized mail depositories under the provisions of a Post Office Department regulation. In" }, { "docid": "1651063", "title": "", "text": "sort, which could easily have been spelled out, cannot be imposed on the general words ‘any such article or thing’ in the concluding proviso of Sec. 1708. Those words must be deemed to include any article or thing previously mentioned in Sec. 1708, whether it is described specifically as a ‘letter’ or generally as ‘an article or thing.’ ” 187 F. 2d 954, 956. Following the Armstrong decision, the Postmaster General and the Attorney General asked Congress to eliminate the misdemeanor provision from § 1708 because the crime of theft of mail had been divided into “felonies and misdemeanors, with the value of the matter stolen as the determining factor.” S. Rep. No. 980, 82d Cong., 1st Sess., pp. 3-4; H. R. Rep. No. 1674, 82d Cong., 2d Sess., pp. 3-5. Subsequent to our granting certiorari, June 9, 1952, the proposal to eliminate the misdemeanor provision was approved, July 1,1952. 66 Stat. 314. Although Congress thus eliminated the conflict which led us to grant certiorari, the change in the statute can have no effect on a prior conviction such as petitioner’s. In our view, under the then wording of § 1708, and its purpose as shown by the Reviser’s Notes, petitioner was improperly convicted of a felony. This Court has power to do justice as the case requires. 28 U. S. C. § 2106. The judgment of the Court of Appeals is reversed and the cause is remanded to the District Court to correct the sentence. It is so ordered. “Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; or “Whoever steals, takes," }, { "docid": "979111", "title": "", "text": "speedy trial on the ten felony charges” —obviously not a prospect conducive to vigorous assertion of constitutional rights. Once again, moreover, the district court’s finding is of a nature which calls for considerable deference on our part in light of the lower court’s closer contact with the parties and its greater familiarity with practices in its district. We accept, then, the district court’s conclusion that the defendant was denied his Sixth Amendment right to a speedy trial. The speedy trial clause is plainly applicable although the defendant contemplated not a trial but instead a plea of guilty. In terms of the multi-factor balancing test prescribed by the Supreme Court in Barker v. Wingo, assessment of three of the factors in the context of this case strongly indicates that Roberts was denied his Sixth Amendment right to a speedy trial; consideration of the fourth factor, the defendant’s assertion of the right, only mildly and inconsequentially qualifies this conclusion. The district court’s order dismissing the indictment for reasons of unconstitutional delay must therefore be affirmed. Affirmed. . § 1708. Theft or receipt of stolen mail matter generally. Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; or Whoever steals, takes, or abstracts, or by fraud or deception obtains any letter, postal card, package, bag, or mail, or any article or thing contained therein which has been left for collection upon or adjacent to a collection box or other authorized depository of mail matter; or Whoever buys, receives, or conceals, or unlawfully has in his possession, any letter, postal card, package, bag, or mail, or any" }, { "docid": "23510804", "title": "", "text": "Stat. 237: “{I]f any person or persons shall rob any carrier of the mail of the United States, of such mail, or if any person shall rob the mail, in which letters are sent to be conveyed by post, of any letter or packet, or shall steal such -mail, or shall steal and take from or out of the same, or from or out of any post-office, any letter or packet, such offender or offenders shall, on conviction thereof, suffer death.” (Emphasis supplied.) By 1872 the softening influences of civilization had mitigated the penalties. See Revised Statutes of 1873, §§ 5469 & 5470. . See e. g., the legislative history discussed in United States v. Hines, 2 Cir. 1958, 256 F.2d 561, and Rosen v. United States, 1917, 245 U.S. 467, 38 S.Ct. 148, 62 L. Ed. 406. There have been countless changes in the statutes. . 18 U.S.C. § 1708 includes: “Whoever steals * * * from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter.” . 39 Code of Federal Regulations § 43.7 provides that: “(a) Designation as authorized depository. Every letter box or other receptacle intended or used for the receipt or delivery of mail on any city delivery route, rural delivery route star route or other mail route is designated an authorized depository for mail within the meaning of sections 1702, 1705 and 1708 of Title 18, United States Code.” . “The suggestion that when the mail was deposited in a privately owned box it passed out of the custody of the government and beyond the protection of the law does not deserve extended notice. The letters which were stolen did not reacli the manual possession of the persons to whom they were addressed, but were taken from an authorized depository over which the act of Congress, by its express terms, extended its protection until its function had been served.” Rosen v. United States. . The letter box in Huebner v. United States, 6 Cir. 1928, 28 F.2d 929 was" }, { "docid": "13931580", "title": "", "text": "jury on the elements of the offense as follows: There are two essential elements required to be proved and to be established in order to establish a conviction: First: That the possession of mail or anything contained therein which had been stolen while left for collection upon or adjacent to a collection box or other authorized depository of mail matter; Second: Possessing such letter or contents of that letter knowing that it had been stolen. Those are the two elements of the offense. You will have in mind that an essential element is that the mail matter, or whatever was contained in the mail matter, must have been stolen while left for collection * * * The appellant, citing United States v. Logwood, 360 F.2d 905 (7th Cir. 1966); United States v. Johnson, 463 F.2d 216 (9th Cir.), cert. denied sub nom., Gant v. United States, 409 U.S. 1028, 93 S.Ct. 472, 34 L.Ed.2d 322 (1972); and United States v. Lynn, 461 F.2d 759 (10th Cir. 1972), contends that proof that an article is stolen “from the mails” is a prerequisite to conviction for unlawful possession of stolen mail under 18 U.S.C. § 1708; and that had the trial court defined when an article is “in the mail” the jury might well have concluded that the letters, when found by the appellant on the vestibule floor, were not “in the mail” within the meaning of the statute. The cases cited by the appellant are inapposite here. In those cases, prosecution was under the first and third paragraphs of § 1708, requiring a showing of possession of one of the enumerated articles which had been stolen “from or out of any mail.” Therefore, a definition of “mail” or “from the mail” was indeed critical. The prosecution in the instant case, however, was under the second and third paragraphs of § 1708. The second paragraph of § 1708, by requiring a finding that the article was stolen while “left for collection upon or adjacent to a collection box or other authorized receptacle,” expressly delineates when articles are to be considered “in the" }, { "docid": "7010874", "title": "", "text": "agent of the addressees within the meaning of § 1702. Section 154.62 of the Postal Service Manual did not make either V.P.I. or Brusseau the authorized agent of the students for receipt of their mail. The provision merely explains Postal Service procedures for the collection and delivery of mail. See Postal Service Manual, Part 111. It speaks of the redirection of mail in the event the addressee has moved and, therefore, indicates that delivery does not take place until the mail is forwarded and received by the addressee or his authorized agent. Brusseau cites Rosen v. United States, 245 U.S. 467, 38 S.Ct. 148, 62 L.Ed. 406 (1918), to support his argument that we must rely upon the Postal Service Manual for the definition of delivery. In that case the Supreme Court construed the predecessor statute to 18 U.S.C. § 1708, which contained the term “authorized depository for mail matter,” in light of a postal regulation which specifically referred to the statute. Both statute and regulation implicitly relied upon one another. 245 U.S. at 472-73, 38 S.Ct. 148. There is no such reliance in the present ease. Brusseau introduced no evidence from which the court below could find that any specific addressees had authorized him to receive their mail. United States v. Brown, 551 F.2d '236, 241 (8 Cir. 1977). In the absence of an express or implied direction, Brusseau was not an authorized agent within the terms of 18 U.S.C. § 1702. We dispense with oral argument and affirm the judgment of the district court. Affirmed. . 18 U.S.C. § 1702 provides in pertinent part: Whoever takes any letter . . . which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined not more than $2,000 or imprisoned not more than five years, or both. . Section 154.62 provides:" }, { "docid": "7274894", "title": "", "text": "matter of law. A reasonable-minded jury could have concluded there was sufficient evidence of guilt in fact, inconsistent with any reasonable hypothesis of innocence. Once the government’s evidence passes this test of legal sufficiency, a judgment of acquittal cannot be entered by the trial judge, even where that course seems “most consonant with the interests of justice.” United States v. Brown, 587 F.2d at 190, citing United States v. Weinstein, 452 F.2d 704, 715 (2d Cir. 1971) cert. denied, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972). Consequently, the district court’s order denying the appellant’s motion for judgment of acquittal must be AFFIRMED. . Title 18 U.S.C.A. § 1708 (1970): Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; or Whoever steals, takes, or abstracts, or by fraud or deception obtains any letter, postal card, package, bag, or mail, or any article or thing contained therein which has been left for collection upon or adjacent to a collection box or other authorized depository of mail matter; or Whoever buys, receives, or conceals, or unlawfully has in his possession, any letter, postal card, package, bag, or mail, or any article or thing contained therein, which has been so stolen, taken, embezzled, or abstracted, as herein described, knowing the same to have been stolen, taken, embezzled, or abstracted- Shall be fined not more than $2,000 or imprisoned not more than five years, or both. . The record reflects that the district court acquitted on the forgery count because the government failed to show the offense took place on the date alleged in the" }, { "docid": "2375691", "title": "", "text": "the offenses it interdicts enumerates the postal custody, mail receptacles, and “other authorized depository for mail matter” it is designed to protect against theft. The section evinces no congressional intent to afford federal protection to items beyond those points. The letter and its contents here purloined were not stolen from a custody or locus within the purview of § 1708 and consequently the evidence does not establish that the defendant was in possession of a “letter * * * or any article or thing contained therein * * * so stolen * * * as herein described”. The government’s reliance upon Rosen v. United States, 245 U.S. 467, 38 S.Ct. 148, 62 L.Ed. 406, is misplaced. That case involved letters containing checks which were stolen from boxes placed by tenants for the receipt of mail in the halls of the building in which they had their places of business. The boxes, which bore the names of their owners, were held to be authorized mail depositories under the provisions of a Post Office Department regulation. In the instant case there is nothing to indicate that the landlady was an authorized custodian of the tenant’s mail pursuant to any postal regulation or that the window sill of her apartment was an authorized mail depository. Maxwell v. United States, 8 Cir., 235 F.2d 930, cited by the government, turns on the express language utilized in 18 U.S.C.A. § 1702 which serves to extend the protective mantle of that particular section to embrace matter which has been in postal custody or in an authorized depository and is intercepted “before it has been delivered to the person to whom it was directed”. § 1702 appears to be primarily directed at an invasion of privacy “with design to obstruct the correspondence, or to pry into the business or secrets of another” and it encompasses a latitude commensurate with that purpose. But in our opinion it is obvious from the differences in the specific language and terminology employed that § 1708 is not intended to and does not reach as far as § 1702 extends. In United" }, { "docid": "5757649", "title": "", "text": "530 F.2d 792 (8th Cir. 1976). See also United States v. McCready, 11 F. 225, 237 (C.C.W.D.Tenn. 1882). In this respect, the reach of the anti-obstruction statute, 18 U.S.C. § 1702, quoted supra note 9, is thus greater than that of the theft-from-the-mail provision, 18 U.S.C. § 1708 (1976), quoted supra note 8. Compare United States v. Davis, 461 F.2d 83, 88-90 (5th Cir.), cert. denied, 409 U.S. 921, 93 S.Ct. 250, 34 L.Ed.2d 180 (1972); United States v. Anton, 547 F.2d 493, 495 496 (9th Cir. 1976); United States v. Ashford, supra, 403 F.Supp. at 464 465. . E. g., United States v. Maxwell, supra note 16, where the accused took a letter from a table in a hallway after it had been innocently removed from a mailbox by another. In the view of the District Court, [t]hat she took [the letter] from a table in the hallway on which the “letter” had been placed, after innocently being taken from an authorized depository for mail matter, does not militate against or exculpate her from the offense denounced in Section 1702, supra. The “letter” had not “been delivered to the person to whom it was directed”. Patently, the protection afforded by said section for such “letter” was then existent, as intended by Congress. The Congress has the right to protect a “letter” with whatever is absolutely necessary to assure its delivery “to the person to whom it was directed.\" 137 F.Supp. at 304. On appeal, the Eighth Circuit added: We can think of no sound reason for not giving to the statute the full meaning which its language imports or for denying to Congress the power to protect a letter from theft from the time it is mailed until it has actually been received by the person to whom it is addressed. Certainly the stealing of undelivered United States mail is a matter of national concern. 235 F.2d at 932. Accord, United States v. Murray, 306 F.Supp. 833, 834-835 (D.Md.1964). . With this broad construction of “taking,” the ensuing prohibition of “embezzlement” in § 1702 can be harmonized as contemplating" }, { "docid": "9518879", "title": "", "text": "of acquittal on Count I should have been granted. What is now § 1702 is an old statute and is designed to protect the mails and correspondence moving therein from theft, embezzlement, obstruction, and meddlesome prying. The statute reads: Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined not more than $2,000 or imprisoned not more than five years, or both. While there is authority to the effect that the protection extended by § 1702 ends when a piece of mail matter passes legitimately out of the control and beyond the responsibility of what is now the United States Postal Service, later and more authoritative cases establish that the statute is applicable until the mailed material is physically delivered to the person to whom it is directed or to his authorized agent, and this court is committed to that view. Ross v. United States, 374 F.2d 97, 103 (8th Cir. 1967); Maxwell v. United States, 235 F.2d 930 (8th Cir.), cert. denied, 352 U.S. 943, 77 S.Ct. 266, 1 L.Ed.2d 239 (1956). See also United States v. Brown, 425 F.2d 1172 (9th Cir. 1970); United States v. Wade, 364 F.2d 931 (6th Cir. 1966). As thus construed, § 1702 is a broader statute than § 1708 under which the second count of the indictment was drawn. The protection of § 1708 is limited to mail matter which is still in the possession or control of the Postal Service or which has been placed in an authorized receptacle for mail matter such as a private letter box and which has not lawfully been removed therefrom. United States v. Matzker, 473 F.2d 408" }, { "docid": "22985410", "title": "", "text": "harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern. 18 U.S.C. § 3663(a)(2). See United States v. Jewett, 978 F.2d 248, 252 (6th Cir.1992). The Jewett court stated that this amendment \"expands the definition of a 'victim' in cases such as mail fraud....\" Id. Jewett had pleaded guilty to two counts of mail fraud and aiding and abetting under 18 U.S.C. §§ 1341 and 2, committed in the course of a bid-rigging scheme. Id. at 249. In contrast, Comer was charged, in pertinent part, with violations of 18 U.S.C. §§ 1709, 1708, and 2 and was not charged with any crime that required proof of a scheme, conspiracy, or pattern of criminal activity. See also United States v. Guardino, 972 F.2d 682, 687 (6th Cir.1992) (describing amendment to VWPA allowing the court to order restitution to the extent that the parties have agreed to restitution in a plea agreement). These amendments are irrelevant here. In addition, the Mandatory Victims Restitution Act of 1996 (“MVRA\"), which was enacted on April 24, 1996 as Title II, Subtitle A of the Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132, 110 Stat. 1214, does not apply in this case because Title II provides that \"[t]he amendments made by [subtitle A] shall, to the extent constitutionally permissible, be effec tive for sentencing proceedings in cases in which the defendant is convicted on or after the date of enactment of this Act.” Section 211, 110 Stat. 1214, 1241, 18 U.S.C. § 2248. Accordingly, statutory citations in this opinion refer to the provisions in effect before the passage of the MVRA. . Section 1708 reads as follows: Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or" }, { "docid": "23510805", "title": "", "text": "route or other authorized depository for mail matter.” . 39 Code of Federal Regulations § 43.7 provides that: “(a) Designation as authorized depository. Every letter box or other receptacle intended or used for the receipt or delivery of mail on any city delivery route, rural delivery route star route or other mail route is designated an authorized depository for mail within the meaning of sections 1702, 1705 and 1708 of Title 18, United States Code.” . “The suggestion that when the mail was deposited in a privately owned box it passed out of the custody of the government and beyond the protection of the law does not deserve extended notice. The letters which were stolen did not reacli the manual possession of the persons to whom they were addressed, but were taken from an authorized depository over which the act of Congress, by its express terms, extended its protection until its function had been served.” Rosen v. United States. . The letter box in Huebner v. United States, 6 Cir. 1928, 28 F.2d 929 was not at the entrance of the building but was on the second floor and far within the building, and the building was under the control of a single addressee. Also Huebner was decided under an earlier collateral relative of the present 18 U.S.C. § 1708. There were no regulations like those now in effect. Rosen on the other hand was decided under what was in effect the modern statutory language and regulations. See Huebner v. United States; United States v. Sehon Chinn, S.D.W.Va.1948, 85 F.Supp. 558, 560. In United States v. Askey, S.D. Tex.1952, 108 F.Supp. 408 the mail was left on the floor and not in a box at all. In United States v. Lophansky, E.D.Pa.1916, 232 F. 297, the mail was not left within a box of any kind. In United States v. Chapman, E.D.N.Y. 1959, 179 F.Supp. 447, the mail was not in a mailbox, it was in a mail bag which had been delivered to an employee of the building in which the addressee was located. The district court held that" }, { "docid": "7010873", "title": "", "text": "were missing after defendant finished sorting in the mail room. They followed Brusseau to a gas station where he bought gas for his car and paid for it with a marked five-dollar bill from one of the control envelopes. Brus-seau admitted taking money from the letter. By its own terms, 18 U.S.C. § 1702 covers only the taking of undelivered correspondence. Defendant claims that Section 154.-62 of the Postal Service Manual authorizes a school to be the agent of its students for purposes of receiving their mail and, thus, receipt by V.P.I. of its students’ mail consti tuted delivery under these circumstances. “[Section 1702] is applicable until the mailed material is physically delivered to the person to whom it is directed or to his authorized agent . . . .” United States v. Ashford, 530 F.2d 792, 795 (8 Cir. 1976), aff’g 403 F.Supp. 461 (N.D.Iowa 1975). In the instant case it is clear that the letters did not reach the students addressed. Thus, Brusseau’s conviction must stand unless he or V.P.I. was the authorized agent of the addressees within the meaning of § 1702. Section 154.62 of the Postal Service Manual did not make either V.P.I. or Brusseau the authorized agent of the students for receipt of their mail. The provision merely explains Postal Service procedures for the collection and delivery of mail. See Postal Service Manual, Part 111. It speaks of the redirection of mail in the event the addressee has moved and, therefore, indicates that delivery does not take place until the mail is forwarded and received by the addressee or his authorized agent. Brusseau cites Rosen v. United States, 245 U.S. 467, 38 S.Ct. 148, 62 L.Ed. 406 (1918), to support his argument that we must rely upon the Postal Service Manual for the definition of delivery. In that case the Supreme Court construed the predecessor statute to 18 U.S.C. § 1708, which contained the term “authorized depository for mail matter,” in light of a postal regulation which specifically referred to the statute. Both statute and regulation implicitly relied upon one another. 245 U.S. at 472-73," }, { "docid": "13931583", "title": "", "text": "proceedings below, we affirm the judgment of conviction. . § 1708. Theft or receipt of stolen mail matter generally Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; or Whoever steals, takes, or abstracts, or by fraud or deception obtains any letter, postal card, package, bag, or mail, or any article or thing contained therein which has been left for collection upon or adjacent to a collection box or other authorized depository of mail matter; or Whoever buys, receives, or conceals, or unlawfully has in his possession, any letter, postal card, package, bag, or mail, or any article or thing contained therein, which has been so stolen, taken, embezzled, or abstracted, as herein described, knowing the same to have been stolen, taken, embezzled, or abstracted— Shall be fined not more than $2,000 or imprisoned not more than five years, or both. . The instruction tendered by the appellant, that “if the envelopes were in fact found on the floor they were not taken from the mails,” was rejected by the trial court. This instruction is hardly synonymous with the deficiencies in the trial court’s instructions raised on appeal, namely, the failure of the court’s instructions to define “mail” and “mail left for collection.” This point is underscored by the trial judge’s indication in chambers that he was willing to consider any definition of “from the mail” or “authorized depository for mail” offered by the parties, a challenge to which the appellant failed to respond." } ]

[ { "docid": "22195947", "title": "", "text": "http://www.whitehouse.gov/the-press-office/ 2011/12/31/statementpresident-hr-l 540. SCHROEDER, Senior Circuit Judge, joined by PAEZ, BERZON and MURGUIA, Circuit Judges, dissenting: I respectfully dissent. The majority holds substantively unreasonable a 22-year sentence that is 13 years less than the government’s request in its sentencing memorandum, and only 8 years less than what the government conceded at oral argument it would have accepted without appealing to this court. In light of the district court’s sentencing discretion, I would exercise a more appropriate level of deference, and affirm. The district court’s explanation of this sentence shows that the court followed this circuit’s law. See United States v. Maier, 646 F.3d 1148, 1156 (9th Cir.2011) (citing United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir.2009) (en banc)). The court noted it could not presume that the advisory Guidelines range is reasonable. See United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc). The court said that it had considered the 18 U.S.C. § 3553(a) factors, in addition to the Guidelines, in arriving at the sentence it imposed. It went through each of those factors, explaining the weight it assigned to each, and why. The district court had lived with the case for nine years and its explanation reflects its familiarity with the history of the case and with the defendant. The government has at no time contended that the district court committed procedural error in imposing this sentence, or that it made any clearly erroneous findings. In their sentencing memoranda, both sides sought sentences that amounted to substantial downward variances from the bottom end of the Guidelines range, which was 65 years. The defendant asked for a sentence of 15 years, and the government for 45. The 22-year sentence imposed was thus well within the range of alternatives proposed to the district court. (At the sentencing colloquy, only after the defendant said he would not object to any sentence that the district court imposed— even life — did the government up its recommendation to life.) To justify its conclusion that the sentence is too low, the majority focuses on the district court’s explanation of the" } ]

[ { "docid": "1878856", "title": "", "text": "expected to consider the factors specifically identified in 18 U.S.C. § 3553(a) before imposing a sentence and to depart above or below the Guidelines range if appropriate. See Cunningham v. California, 549 U.S. 270, 286-87, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) (noting sentencing courts are “obliged” to consider the Guidelines range as well as sentencing goals enumerated in § 3553(a)). Although the parties argue at some length about the appropriateness of the district court’s reliance on an application note that was not added to the Sentencing Guidelines until after the crime was committed, we do not review any such departure for procedural correctness, as we do upward and downward adjustments in calculating the total offense level under the Sentencing Guidelines. See United States v. Ellis, 641 F.3d 411, 421 (9th Cir.2011) (explaining that decisions to depart from the Guidelines range are not reviewed for procedural correctness). Instead, we consider this upward departure as part of our review of a sentence’s substantive reasonableness. See id. e. Substantive reasonableness When reviewing a criminal sentence for substantive reasonableness, we apply an abuse of discretion standard. United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir.2012) (en banc). This standard “afford[s] significant deference to a district court’s sentencing decision,” and “will provide relief only in rare cases.” Id. at 1086, 1088. “‘[W]e may reverse if, upon reviewing the record, we'have a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon weighing the relevant factors.’ ” Id. at 1087 (quoting United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir.2009)). “The touchstone of ‘reasonableness’ is whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” Id. at 1089 (citation and internal quotation marks omitted). A district court’s § 3553(a) determinations are owed significant deference because “[t]he sentencing judge is in a superior position to find facts and judge their import’ ” due to “greater familiarity with[] the individual case and the individual defendant before [her],” Gall v. United States, 552 U.S. 38, 51," }, { "docid": "20295562", "title": "", "text": "that the Supreme Court has imposed on a district court’s power to impose a sentence less than the statutory maximum are that the sentence must not be tainted by procedural error, and that it must not be substantively unreasonable. See Rita v. United States, 551 U.S. 338, 341, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). We address in turn Fitch’s contentions that his sentence was both. A. Procedural Error We set forth the standard for determining procedural error in United States v. Carty, 520 F.3d 984 (9th Cir.2008): It would be procedural error for a district court to fail to calculate — or to calculate incorrectly — the Guidelines range; to treat the Guidelines as mandatory instead of advisory; to fail to consider the § 3553(a) factors; to choose a sentence based on clearly erroneous facts; or to fail adequately to explain the sentence selected, including any deviation from the Guidelines range. Id. at 993. Fitch does not challenge the district court’s Guidelines calculations, but argues that its sentence was proeedurally erroneous in all other respects. 1. Factual Findings The factual findings underlying a district court’s sentence are reviewed for clear error. See United States v. Showalter, 569 F.3d 1150, 1159 (9th Cir.2009). “In order to reverse a district court’s factual findings as clearly erroneous, we must determine that the district court’s factual findings were illogical, implausible, or without support in the record.” United States v. Spangle, 626 F.3d 488, 497 (9th Cir.2010). In applying that standard of review, we bear in mind two things. First, in this circuit, “where a severe sentencing enhancement is imposed on the basis of uncharged or acquitted conduct, due process may require clear and convincing evidence of that conduct.” Treadwell, 593 F.3d at 1000. Second, “[a] sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited as to the kind of information he may consider, or the source from which it may come.” United States v. Vanderwerfhorst, 576 F.3d 929, 935 (9th Cir.2009) (internal alteration and quotation marks omitted); see also U.S.S.G. § 6A1.3(a) (“In resolving any dispute concerning a factor important" }, { "docid": "14879590", "title": "", "text": "of 24 and a criminal history category of VI, the district court calculated the advisory guidelines range to be 100 to 125 months’ imprisonment. Yet, rather than impose a sentence within this range, the district court granted a downward variance and sentenced EspinozaBaza to just ninety-six months. According to the district court, a downward variance was appropriate because Espinoza-Baza had spent almost his entire life in the United States and had become culturally assimilated to life in America. Nevertheless, given Espinoza-Baza’s significant criminal history and because he had reentered the United States illegally on multiple occasions, the district court declined Espinoza-Baza’s invitation to impose an even lower sentence. On appeal, Espinoza-Baza challenges the district court’s evidentiary ruling and its refusal to give a jury instruction pertaining to derivative citizenship. He also contends that his ninety-six month sentence is both procedurally and substantively unreasonable. II. The crime of illegally reentering the United States after deportation consists of the following elements: (1) “the defendant is an alien;” (2) he “was deported and removed from the United States;” and (3) he thereafter “voluntarily reentered and remained in the United States without the consent of the Attorney General.” United States v. Godinez-Rabadan, 289 F.3d 630, 633 (9th Cir.2002); see also 8 U.S.C. § 1326. This appeal raises two challenges related to the alienage element. First, Espinoza-Baza contends that the district court improperly excluded evidence related to his derivative citizenship defense. Second, he argues that the district court erred by rejecting his request for a jury instruction on that defense. A. We turn first to Espinoza-Baza’s contention that the district court improperly excluded evidence related to derivative citizenship. In illegal reentry cases, the government carries the burden of establishing alienage by proof beyond a reasonable doubt. United States v. Smith Baltiher, 424 F.3d 913, 921 (9th Cir.2005). This means that an individual accused of violating section 1326 is “entitled to put the government to its proof on the issue of alienage” and must be permitted “to defend himself by seeking to prove that he was not an alien.” United States v. Meza-Soria, 935 F.2d 166," }, { "docid": "22240029", "title": "", "text": "in James, the district court in this case “instructed the jury on the meaning and significance of direct and circumstantial evidence.” Id. at 227; see also id. at 227 n. 2. The district court’s instruction on the reasonable doubt standard was sufficient to ensure that the jurors understood “their duty in the event they concluded that the evidence reasonably permitted a finding of either guilt or innocence.” Id. at 227; see also United States v. Miller, 688 F.2d 652, 662 (9th Cir.1982). In light of James, the district court’s conclusion that the other jury instructions adequately covered the substance of Orozco-Acosta’s proposed instruction was not an abuse of discretion. In addition, the district court read OrozeoAcosta’s requested defense theory instruction, ensuring that the jury instructions as a whole adequately presented his theory of the case. There was no instructional error. III. Sentence Orozco-Acosta’s final challenge is to his sentence. In reviewing a sentence, we first consider whether the district court committed significant procedural error. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). In determining whether the district court committed procedural error, we review, inter alia, the district court’s interpretations of the federal Sentencing Guidelines. See United States v. Bendtzen, 542 F.3d 722, 724-25 (9th Cir.2008). If no procedural error is found, we then review the sentence for substantive reasonableness under the abuse of discretion standard. United States v. Ressam, 593 F.3d 1095, 1120-22 (9th Cir.2010). We find no procedural error in this case. Because Orozco-Acosta was convicted of violating 8 U.S.C. § 1326, he properly was given a base offense level of eight. U.S. Sentencing Guidelines Manual § 2L1.2 (2008). The Guidelines also provide for a sixteen-level upward adjustment “[i]f the defendant previously was deported ... after ... a crime of violence.” Id. § 2L1.2(b)(l)(A)(ii). Orozco-Acosta was deported after being convicted of California Penal Code section 288(a), which criminalizes lewd and lascivious acts upon a child under the age of ■ fourteen. See Cal.Penal Code § 288(a). In United States v. Medina-Villa, 567 F.3d 507 (9th Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 1545, 176 L.Ed.2d" }, { "docid": "22175072", "title": "", "text": "review a district judge’s sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). This two-part analysis requires determining: (1) whether there was procedural error in formulating the sentence, and (2) whether the sentence is substantively reasonable. Id. “[W]hen the judge’s discretionary decision accords with the Commission’s view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.” Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); see United States v. Carty, 520 F.3d 984, 994 (9th Cir.2008) (en banc) (adopting this standard in our circuit). Since “ ‘[t]he sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court,’ ” our determination that “a ‘different sentence [i]s appropriate is insufficient to justify reversal of the district court.’ ” United States v. Carter, 560 F.3d 1107, 1120 (9th Cir.) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586), cert. denied, — U.S. -, 130 S.Ct. 273, 175 L.Ed.2d 184 (2009). A. Sentencing Procedure Because Blinkinsop did not object to his imprisonment term at sentencing, the district judge’s sentencing procedure is reviewed for plain error. United States v. Sylvester Norman Knows His Gun, III, 438 F.3d 913, 918 (9th Cir.2006). Proper sentencing procedure requires that, before imposing sentence, the district judge: (1) correctly calculate the Sentencing Guidelines range; (2) treat the Guidelines as advisory; (3) consider the 18 U.S.C. § 3553(a) factors; (4) choose a sentence that is not based on clearly erroneous facts; (5) adequately explain the sentence; and (6) not presume that the Guidelines range is reasonable. Carty, 520 F.3d at 991-93; see Gall, 552 U.S. at 49-50, 128 S.Ct. 586. Adequate explanation not only derives from the judge’s pronouncement of the sentence, but “may also be inferred from the PSR [presentence investigation report] or the record as a whole.” Carty, 520 F.3d at 992. At sentencing, the district judge recounted the calculation of Blinkinsop’s sentence under the" }, { "docid": "22971440", "title": "", "text": "no fine, and a $100 special assessment. II. “Whether a conviction constitutes a crime of violence under the Guidelines is reviewed de novo.” United States v. Jennen, 596 F.3d 594, 600 (9th Cir.2010). We review the sentence imposed by the district court for abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc); see also Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We will reverse the sentence only where it was procedurally erroneous or substantively unreasonable. Carty, 520 F.3d at 993. “It would be procedural error for a district court to fail to calculate — or to calculate incorrectly — the Guidelines range ... or to fail adequately to explain the sentence selected, including any deviation from the Guidelines range.” Id. (citing Gall, 552 U.S. at 51, 128 S.Ct. 586). The explanation must be sufficient “to permit meaningful appellate review.” Id. at 992 (citing Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). While the district court “need not ... ar ticulate in a vacuum how each § 3558(a) factor influences its determination of an appropriate sentence,” when “a party raises a specific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence, then the judge should normally explain why he accepts or rejects the party’s position.” Id. at 992-93. That said, lengthy explanations of sentencing decisions are not necessary “if ‘the record makes clear that the sentencing judge considered the evidence and arguments.’ ” United States v. Daniels, 541 F.3d 915, 922 (9th Cir.2008) (quoting Rita, 551 U.S. at 359, 127 S.Ct. 2456). In addressing whether Ruiz’s sentence was substantively unreasonable, we must consider “the totality of the circumstances.” Carty, 520 F.3d at 993. “A substantively reasonable sentence is one that is ‘sufficient, but not greater than necessary’ to accomplish § 3553(a)(2)’s sentencing goals.” United States v. Croive, 563 F.3d 969, 977 n. 16 (9th Cir.2009) (quoting 18 U.S.C. § 3553(a)). “The touchstone of ‘reasonableness’ is whether the record as a whole reflects rational and" }, { "docid": "10120506", "title": "", "text": "for procedural correctness). Instead, we consider this upward departure as part of our review of a sentence’s substantive reasonableness. See id. e. Substantive reasonableness When reviewing a criminal sentence for substantive reasonableness, we apply an abuse of discretion standard. United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (en banc). This standard “afford[s] significant deference to a district court’s sentencing ■ decision,” and “will provide relief only in rare cases.” Id. at 1086, 1088. “ ‘[W]e may reverse if, upon reviewing the record, we have a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon weighing the relevant factors.’” Id. at 1087 (quoting United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009)). “The touchstone of ‘reasonableness’ is whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” Id. at 1089 (citation and internal quotation marks omitted). A district court’s § 3553(a) determinations are owed significant deference because “ ‘[t]he sentencing judge is in a superior position to find facts and judge their import’ ” due to “greater familiarity with[] the individual case and the individual defendant before [her].” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (citations and internal quotations marks omitted). This deference persists “[e]ven if we are certain that we would have imposed a different sentence had we worn the district judge’s robe.” United States v. Whitehead, 532 F.3d 991, 993 (9th Cir. 2008) (citing Gall, 552 U.S. at 50, 128 S.Ct. 586); see also Ressam, 679 F.3d at 1086; Carty, 520 F.3d at 993. Christensen’s specific objection to the three-level upward departure for substantial harm not accounted for under the Guidelines, discussed immediately above, focused on the district court’s reliance upon an application note to § 2H3.1, quoted above. That note first appeared in the 2007 Guidelines Manual. U.S.S.G. Manual § 2H3.1, n.3 (2007). There was no such commentary in the 2001 Guidelines Manual, which applied to Christensen’s offenses. But, as we noted above, we" }, { "docid": "22815581", "title": "", "text": "its discretion by imposing a substantively unreasonable sentence. II In reviewing a sentence determination, a court “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If the district court’s sentence is procedurally sound, “the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. A We turn first to Vasquez-Cruz’s argument that the district court procedurally erred by failing to address whether he was entitled to a departure for cultural assimilation under U.S.S.G. § 2L1.2 cmt. n.8 before applying the sentencing factors set forth in 18 U.S.C. § 3553(a). We have long held that we do not review the procedural correctness of a district court’s discretionary decision to depart from the Guidelines range. Rather, we “treat the scheme of downward and upward ‘departures’ as essentially replaced by the requirement that judges impose a ‘reasonable’ sentence.” United States v. Mohamed, 459 F.3d 979, 986 (9th Cir.2006); see also United States v. Ellis, 641 F.3d 411, 421 (9th Cir.2011). In Mohamed we explained that, even if the district court erred in applying a departure, there would be no point in reversing for such an error because “the sentencing judge still would be free on remand to impose exactly the same sentence by exercising his discretion under the now-advisory guidelines” and “[s]uch a sentence would then be reviewed for reasonableness.” 459 F.3d at 987. For this reason, any erroneous application of the departure would be harmless so long as the sentence actually imposed was substantively reasonable. Therefore, “our review of the so-called departure would have little or no independent value” and “would result in wasted time and resources in the courts of appeal, with little or no effect" }, { "docid": "22796637", "title": "", "text": "offense and waived various rights. He signed a written agreement in which he pleaded guilty to making a false statement to a federal official, in violation of 18 U.S.C. § 1001, namely, that in 2004, after having illegally entered the country, he told a federal officer “that his name was Salvador Beltran-Bera.” Gutierrez and the government agreed upon his offense level and criminal history under the Guidelines calculations, which produced a Guidelines range sentence of 6-12 months imprisonment. The parties agreed to recommend a sentence of 9 months imprisonment. In the plea agreement, Gutierrez also stated that he “understands that the sentence is within the sole discretion of the sentencing judge” and that “the recommendation made by the Government is not binding on the Court, and defendant’s actual sentence remains uncertain at this time.” The district court accepted Gutierrez’ guilty plea but rejected the recommended 9 months imprisonment sentence. The court stated that it was “inclined to sentence within what I think is the applicable guideline range for the real offense, which is coming back over here.” After hearing Gutierrez’ objections, the court “f[ou]nd that the real offense here, the one that the Guideline calculations should be predicated upon, is a[n 8 U.S.C. § ]1326.” The court calculated the Guidelines range for this offense at 10-16 months imprisonment (which calculation Gutierrez does not challenge) and, after considering the specified sentencing factors under 18 U.S.C. § 3553(a), sentenced Gutierrez to 16 months imprisonment. II A. On appeal, this court “first eonsider[s] whether the district court committed significant procedural error, then ... considers] the substantive reasonableness of the sentence.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). In Carty, we held that [i]t would be procedural error for a district court to fail to calculate — or to calculate incorrectly — the Guidelines range; to treat the Guidelines as mandatory instead of advisory; to fail to consider the § 3553(a) factors; to choose a sentence based on clearly erroneous facts; or to fail adequately to explain the sentence selected, including any deviation from the Guidelines range. Id. Gutierrez" }, { "docid": "22088471", "title": "", "text": "And as with offense level calculations, a criminal history category departure requires the district court to consider many of the § 3553(a) factors: the risk of recidivism, see 18 U.S.C. § 3553(a)(2)(C); the nature of the defendant’s criminal history, see id. § 3553(a)(1); and the nature of the offense, see id. For this reason, and because a court “would be free on remand to impose exactly the same sentence by exercising [its] discretion under the now-advisory guidelines,” Mohamed, 459 F.3d at 987, it would likewise be redundant to review the criminal history departure both for procedural error and substantive unreasonableness. Thus, following the reasoning in Mohamed, we hold that where a district court “has framed its analysis in terms of a downward or upward departure” for a criminal history category, we will analyze such a departure as “an exercise of post-Booker discretion to sentence a defendant outside of the applicable guidelines range.” Id. Our holding makes explicit what we implicitly held in United States v. Tankersley, 537 F.3d 1100, 1114 (9th Cir.2008). In Tankersley, after explaining that “we do not need to consider whether the district court correctly applied the departure provision in § 5K2.0; rather we review the district court’s deviation from the applicable guidelines range for reasonableness,” we cited United States v. Johnson, 427 F.3d 423, 425-27 (7th Cir.2005), for the proposition that it is not necessary to consider whether the district court correctly applied USSG § 4A1.3 (the provision at issue here), only whether the defendant’s ultimate sentence was reasonable. See Tankersley, 537 F.3d at 1114. B We next turn to Ellis’s argument that the court did not sufficiently explain its substantial deviation from the applicable advisory guideline range and also failed to address his “clinically-diagnosed gambling addiction,” which he argued was the “root cause” of his bank robberies. A district court commits procedural error if it fails to provide adequate explanation for the sentence imposed. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc) (noting that it would be procedural error for a district court to “fail adequately to explain the sentence selected," }, { "docid": "23066434", "title": "", "text": "times. The government responded that it had considered the sentencing factors set forth in 18 U.S.C. § 3553. The government also noted that Rosales-Gonzales settled his case “in an expedient manner” and waived both indictment and his right to appeal. Following the parties’ arguments, the district court judge explained that he agreed with the parties as to the first part of the Guidelines calculation, including that the base offense level was eight, Rosales-Gonzales’s four prior felony convictions added four points, but that he had accepted responsibility, which dropped the offense level to ten. The district court also agreed with the parties that Rosales-Gonzales’s criminal history category was five, thus, the sentence range would be 21 to 27 months. The district court judge disagreed with the parties, however, that the fast-track departure under § 5K3.1 applied and declined to apply it. The district court judge then determined that an “upper end” Guidelines sentence was warranted and sentenced Rosales-Gonzales to 27 months’ imprisonment. Rosales-Gonzales timely appealed his sentence to this court. II. Standard of Review We analyze challenges to criminal sentences in two steps: First, we “consider whether the district court committed significant procedural error.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). Second,- “we consider the substantive reasonableness of the sentence.” Id. Where the district court has “committed a significant procedural error, such as a material error in the Guidelines calculation that serves as the start point for the district court’s sentencing decision, we will remand for resentencing pursuant to 18 U.S.C. § 3742(f).” United States v. Pham, 545 F.3d 712, 716 (9th Cir.2008) (internal quotation marks and citation omitted). We review the substantive reasonableness of the sentence for abuse of discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir.2009). III. Discussion This case requires us to determine whether a district court must grant a departure under § 5K3.1 of the Sentencing Guidelines for participation in a fast-track program when the parties jointly request this departure. In answering this question, we consider both procedural error and the substantive reasonableness of Rosales-Gonzales’s sentence. A. Procedural Error" }, { "docid": "22240030", "title": "", "text": "banc). In determining whether the district court committed procedural error, we review, inter alia, the district court’s interpretations of the federal Sentencing Guidelines. See United States v. Bendtzen, 542 F.3d 722, 724-25 (9th Cir.2008). If no procedural error is found, we then review the sentence for substantive reasonableness under the abuse of discretion standard. United States v. Ressam, 593 F.3d 1095, 1120-22 (9th Cir.2010). We find no procedural error in this case. Because Orozco-Acosta was convicted of violating 8 U.S.C. § 1326, he properly was given a base offense level of eight. U.S. Sentencing Guidelines Manual § 2L1.2 (2008). The Guidelines also provide for a sixteen-level upward adjustment “[i]f the defendant previously was deported ... after ... a crime of violence.” Id. § 2L1.2(b)(l)(A)(ii). Orozco-Acosta was deported after being convicted of California Penal Code section 288(a), which criminalizes lewd and lascivious acts upon a child under the age of ■ fourteen. See Cal.Penal Code § 288(a). In United States v. Medina-Villa, 567 F.3d 507 (9th Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 1545, 176 L.Ed.2d 138 (2010) (mem.), we recently reaffirmed that section 288(a) is a “crime of violence” for purposes of § 2L1.2(b)(1)(A)(ii). Id. at 516; see also United States v. Medina-Maella, 351 F.3d 944, 947 (9th Cir.2003). Accordingly, Orozco-Aeosta’s claim that the district court erred by applying the sixteen-level crime-of-violence enhancement is foreclosed by our precedent. We also conclude that OrozcoAcosta’s sentence was substantively reasonable. The district court imposed a sentence in the middle of the Guidelines range after carefully and rationally considering the factors in 18 U.S.C. § 3553(a). The district court emphasized the need to protect the public in light of the seriousness of Orozco-Acosta’s prior section 288(a) conviction. In determining whether OrozcoAcosta posed a continuing threat to the public, the district court was entitled to make reasonable inferences about the import of the women’s underwear found in Orozco-Acosta’s pocket and his incredible explanation for its presence. The district also cited the fact that Orozco-Acosta previously had been deported from the United States ten times, and that Orozco-Acosta’s advanced age had not stopped him from illegally" }, { "docid": "23066435", "title": "", "text": "challenges to criminal sentences in two steps: First, we “consider whether the district court committed significant procedural error.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). Second,- “we consider the substantive reasonableness of the sentence.” Id. Where the district court has “committed a significant procedural error, such as a material error in the Guidelines calculation that serves as the start point for the district court’s sentencing decision, we will remand for resentencing pursuant to 18 U.S.C. § 3742(f).” United States v. Pham, 545 F.3d 712, 716 (9th Cir.2008) (internal quotation marks and citation omitted). We review the substantive reasonableness of the sentence for abuse of discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir.2009). III. Discussion This case requires us to determine whether a district court must grant a departure under § 5K3.1 of the Sentencing Guidelines for participation in a fast-track program when the parties jointly request this departure. In answering this question, we consider both procedural error and the substantive reasonableness of Rosales-Gonzales’s sentence. A. Procedural Error Rosales-Gonzales argues the district court procedurally erred by denying the parties’ joint request for the fast-track departure under § 5K3.1 of the Sentencing ■Guidelines and by not using the Sentencing Guidelines as its starting point. We evaluate these arguments in turn. 1. Denial of the Fast-Track Departure Under § 5K3.1 Pos t-Booker , we elect to review the district court’s application of the advisory sentencing guidelines only insofar as they do not involve departures. To the extent that a district court has framed its analysis in terms of a downward or upward departure, we will treat such so-called departures as an exercise of post-Booker discretion to sentence a defendant outside of the applicable guidelines range. United States v. Mohamed, 459 F.3d 979, 987 (9th Cir.2006); see also United States v. Vasquez-Cruz, 692 F.3d 1001, 1008 (9th Cir.2012) (reaffirming that departures are reviewed as part of the substantive reasonableness analysis and not for procedural error). As such, “we do not need to consider whether the district court correctly applied [the relevant departure provision]'; rather, we review" }, { "docid": "22102133", "title": "", "text": "ORDER AND AMENDED OPINION ORDER Appellant’s motion for an extension of time to file the petition for rehearing and/or petition for rehearing en banc is GRANTED. The petition shall be filed no later than July 22, 2009. Appellee’s request to amend the opinion is GRANTED. The opinion appearing at 567 F.3d 507 (9th Cir. 2009), is amended as follows: On opinion page 512, delete “Contrary to the government’s argument,” and capitalize “nothing.” IT IS SO ORDERED. OPINION WARDLAW, Circuit Judge: Cosme Medina-Villa (“Medina”), also known as Cosme Medina-Maella, returns to our court, again convicted of attempted reentry into the United States after removal in violation of 8 U.S.C. § 1326. He was sentenced to a sixty-month term of imprisonment and three years of supervised release, following a sixteen-level increase in his offense level for a prior conviction under California Penal Code section 288(a), which criminalizes lewd and lascivious acts on a child under fourteen. We must decide whether, in light of Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc), a conviction under section 288(a) constitutes “sexual abuse of a minor,” qualifying it as a “crime of violence” that warrants the sixteen-level increase under U.S.S.G. § 2L1.2. We hold that it does. We must also decide whether the district court erred in denying (1) Medina’s motion to dismiss the indictment grounded in the government’s deportation of material witnesses without first informing Medina of his right to retain them, and (2) Medina’s motion to suppress his initial statements to the field agent for failure to give Miranda warnings. We affirm the district court’s rulings and, under Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), reject Medina’s argument on appeal that his conviction and sentence are unconstitutional. I. FACTUAL AND PROCEDURAL BACKGROUND Medina, who was seen by a border patrol agent running from the fence between the United States and Mexico along with two other individuals, was apprehended after getting into the passenger seat of a parked car. Blocking the car’s escape with his own parked vehicle, Agent Mills approached the suspects with his gun" }, { "docid": "23327620", "title": "", "text": "later time to shortening Apodaca’s term of supervised release and included a statement in the sentencing order permitting Apodaca to request such relief later. Apodaca appeals from the district court’s sentencing order on two grounds. First, he claims that the imposition of lifetime supervised release was unreasonable. Second, he claims that the fifteenth supervised release condition violates his constitutional rights. For the reasons articulated below, we reject both arguments. II. We conduct a two-step analysis when reviewing the reasonableness of a sentence: “we first consider whether the district court committed significant procedural error, then we consider the substantive reasonableness of the sentence.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). A. Procedural Error When determining whether a district court committed a reversible procedural error during sentencing, we consider whether the court “(1) correctly calculate^] the Sentencing Guidelines range; (2) treat[ed] the Guidelines as Advisory; (3) considered] the 18 U.S.C. § 3553(a) factors; (4) [chose] a sentence that is not based on clearly erroneous facts; (5) adequately explain[ed] the sentence; and (6) [did] not presume that the Guidelines range is reasonable.” United States v. Blinkinsop, 606 F.3d 1110, 1114 (9th Cir.2010) (footnote omitted) (citing Carty, 520 F.3d at 991-93). While Blinkinsop and Carty concerned allegations of procedural error with regard to terms of imprisonment, we consider the same factors when considering challenges to terms of supervised release. See Daniels, 541 F.3d at 921. Apodaca’s allegations of procedural error are limited to claims concerning the adequacy of the district court’s explanation of why it was imposing a lifetime term of supervised release. The sentencing statutes require district courts to “state in open court the reasons [supporting] imposition of a particular sentence.” 18 U.S.C. § 3553(c). Further, “when a party raises a specific, non-frivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence, then the judge should normally explain why he accepts or rejects the party’s position.” Carty, 520 F.3d at 992-93. Even though a “within-Guidelines sentence ordinarily needs little explanation,” courts are required to provide some explanation for their decision when “a party" }, { "docid": "10120505", "title": "", "text": "F.3d 1023, 1030 (9th Cir. 2010) (“[Sentencing judges can reject any Sentencing Guideline, provided that the sentence imposed is reasonable.”). Indeed, after determining the advisory sentencing range, district courts are expected to consider the factors specifically identified in 18 U.S.C. § 3553(a) before imposing a sentence and to depart above or below the Guidelines range if appropriate. See Cunningham v. California, 549 U.S. 270, 286-87, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) (noting sentencing courts are “obliged” to consider the Guidelines range as well as sentencing goals enumerated in § 3553(a)). Although the parties argue at some length about the appropriateness of the district court’s reliance on an application note that was not added to the Sentencing Guidelines until after the crime was committed, we do not review any such departure for procedural correctness, as we do upward and downward adjustments in calculating the total offense level under the Sentencing Guidelines. See United States v. Ellis, 641 F.3d 411, 421 (9th Cir. 2011) (explaining that decisions to depart from the Guidelines range are not reviewed for procedural correctness). Instead, we consider this upward departure as part of our review of a sentence’s substantive reasonableness. See id. e. Substantive reasonableness When reviewing a criminal sentence for substantive reasonableness, we apply an abuse of discretion standard. United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (en banc). This standard “afford[s] significant deference to a district court’s sentencing ■ decision,” and “will provide relief only in rare cases.” Id. at 1086, 1088. “ ‘[W]e may reverse if, upon reviewing the record, we have a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon weighing the relevant factors.’” Id. at 1087 (quoting United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009)). “The touchstone of ‘reasonableness’ is whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” Id. at 1089 (citation and internal quotation marks omitted). A district court’s § 3553(a) determinations are owed significant deference because “ ‘[t]he sentencing" }, { "docid": "22724757", "title": "", "text": "it prohibits (1) sexual conduct (2) with a minor. It contains the final element, abuse, because it applies to sexual conduct with children younger than fourteen years, and therefore prohibits conduct that is per se abusive. See, e.g., Baron-Medina, 187 F.3d at 1147 (concluding that the use of children under fourteen for the gratification of sexual desire necessarily constitutes abuse). Because we conclude that Valencia-Barragan’s conviction under section 9A.44.076(1) criminalizes conduct that satisfies the first federal generic definition of “sexual abuse of a minor,” we do not address whether his conviction also satisfies the second generic federal definition or whether it constitutes “statutory rape.” Valencia-Barragan’s prior conviction constitutes a crime of violence and the district court did not err in imposing a sixteen-level increase under U.S.S.G. § 2L1.2(b)(1)(A). B. Procedural and Substantive Reasonableness Valencia-Barragan also contends that the district court failed to adequately address and apply the sentencing factors listed in 18 U.S.C. § 3553(a) (“the § 3553(a) factors”) and imposed a substantively unreasonable sentence. We review sentencing decisions for abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). Where, as here, a defendant failed to object on the ground that the district court erred procedurally in explaining and applying the § 3553(a) factors, we review only for plain error. United States v. Sylvester Norman Knows His Gun, III, 438 F.3d 913, 918 (9th Cir.2006). The district court did not plainly err in its explanation and application of the § 3553(a) factors. Under the sentencing statute, the district court was required to “state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). “Nonetheless, when a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Accordingly, “a sentencing judge does not abuse his discretion when he listens to the defendant’s arguments and then ‘simply [finds the] circumstances insufficient to warrant a sentence lower than the Guidelines range.’ ” Amezcua-Vasquez, 567 F.3d at 1053-54" }, { "docid": "22088472", "title": "", "text": "explaining that “we do not need to consider whether the district court correctly applied the departure provision in § 5K2.0; rather we review the district court’s deviation from the applicable guidelines range for reasonableness,” we cited United States v. Johnson, 427 F.3d 423, 425-27 (7th Cir.2005), for the proposition that it is not necessary to consider whether the district court correctly applied USSG § 4A1.3 (the provision at issue here), only whether the defendant’s ultimate sentence was reasonable. See Tankersley, 537 F.3d at 1114. B We next turn to Ellis’s argument that the court did not sufficiently explain its substantial deviation from the applicable advisory guideline range and also failed to address his “clinically-diagnosed gambling addiction,” which he argued was the “root cause” of his bank robberies. A district court commits procedural error if it fails to provide adequate explanation for the sentence imposed. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc) (noting that it would be procedural error for a district court to “fail adequately to explain the sentence selected, including any deviation from the Guidelines range”). Here, however, the record belies both of Ellis’s claims: the district court expressly identified all of the sentencing factors it considered, along with the particular aggravating factors it found significant, namely, Ellis’s commission of seven premeditated “armed bank robberies in 7 months” with a “simulated handgun and written and verbal threats,” his restraint of bank employees on one occasion, and his use of “dangerous tactics to avoid apprehension” on another. And the district court required, as special conditions of supervised release, that Ellis seek treatment both for his “gambling addition,” as well as his “mental health” problems, indicating that it did, in fact, consider his gambling addiction. C Finally, we consider Ellis’s challenge to the district court’s decision to impose an above-Guidelines sentence. In the absence of a “significant procedural error,” this court reviews a sentence for substantive reasonableness. Gall, 552 U.S. at 51, 128 S.Ct. 586. “This review requires deference to the district court’s decision, and should not resemble a de novo review.” United States v. Cherer," }, { "docid": "14879614", "title": "", "text": "See U.S.S.G. § 3D1.2 n. 4. Instead, like the criminal that robs the same victim on different occasions with an identical objective each time, Espinoza-Baza’s multiple reentries over the course of three years “constitute! ] single episodes of criminal behavior, each satisfying an individual — albeit identical — goal.” Bahena-Guifarro, 324 F.3d at 565 (internal quotation marks omitted). The district court therefore did not err by upwardly adjusting Espinoza-Baza’s sentence pursuant to a multiple count enhancement. B. Finally, we turn to EspinozaBaza’s argument that his sentence is substantively unreasonable. In evaluating substantive reasonableness, we consider the totality of the circumstances and presume neither that a non-guidelines sentence is unreasonable nor that a within-guidelines sentence is reasonable. Carty, 520 F.3d at 993. “When a district judge has considered the § 3553(a) factors and the totality of the circumstances supports the sentence, we have held that the sentence is substantively reasonable and that we may not reverse just because we think a different sentence is appropriate.” United States v. Blinkinsop, 606 F.3d 1110, 1116 (9th Cir.2010) (internal quotation marks and alteration omitted). “Regardless of whether the sentence imposed is inside or outside the Guidelines range,” we are required to “review the sentence under an abuse-of-discretion standard.” Gall, 552 U.S. at 51, 128 S.Ct. 586. After correctly calculating the non-binding guideline range to be 100 to 125 months’ imprisonment, the district court granted a downward variance and imposed a below-guidelines sentence of 96 months. Although Espinoza-Baza contends that this term of imprisonment is still too high, we conclude from the totality of the circumstances that the district court did not abuse its discretion. See Blinkinsop, 606 F.3d at 1116. As the district court observed, Espinoza-Baza’s criminal history includes multiple drug-related offenses, an assault with a deadly weapon, a disturbing the peace violation, and a conviction for evading a peace officer. Given the severity and escalating nature of EspinozaBaza’s criminal behavior, the district court did not abuse its discretion when it concluded that a ninety-six month sentence was necessary to deter criminal conduct and to protect the public from further crime. See United States" }, { "docid": "14879607", "title": "", "text": "no instruction on that theory was necessary. See Thomas, 612 F.3d at 1121. We also are unpersuaded by EspinozaBaza’s suggestion that an instruction was necessary in light of our decisions in Smith-Baltiher and Sandoval-Gonzalez. In those cases, we reasoned that where derivative citizenship is at issue, a section 1326 defendant “ ‘must be allowed to present that defense to the jury.’ ” Sandoval-Gonzalez, 642 F.3d at 722, quoting Smith-Baltiher, 424 F.3d at 922. Whatever the potential implications of this broad language, Torres-Flores and Thomas are directly on point: there must be evidence that puts the defense in issue to warrant an instruction on a defendant’s theory of the case. 502 F.3d at 887 n. 2, 612 F.3d at 1121. Because the trial record contains nothing more than a mere scintilla of evidence of derivative citizenship, the district court did not abuse its discretion when it found the requisite evidentiary foundation lacking and refused to instruct the jury pursuant to that theory. III. Espinoza-Baza next raises two challenges to his ninety-six month sentence: (1) the district court committed procedural error because it miscalculated the applicable guidelines range; and (2) the district court committed substantive error by imposing a sentence “greater than necessary” to comply with 18 U.S.C. § 3553(a). A. Although Espinoza-Baza illegally reentered the United States on two separate occasions — once in 2002 and again in 2005 — he contends that the district court committed procedural error by imposing a multiple-count enhancement pursuant to U.S.S.G. § 3D1.4. According to Espinoza-Baza, his separate counts should have been grouped together under U.S.S.G. § 3D1.2, which would have resulted in a lower guidelines range. Our appellate review requires us to ensure that a criminal defendant’s sentence is procedurally reasonable. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). To be reasonable, his sentence must be based on an accurate calculation of the applicable sentencing guidelines range. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008). When evaluating whether a district court correctly calculated that range, we consider the district court’s interpretation of the guidelines de" } ]

[ { "docid": "19271357", "title": "", "text": "that percolating water is not owned by the owner of the land under which it flows and so does not fit within the policy’s owned property exclusion. The Michigan court reasoned that the “reasonable use” rule rejects the rule of absolute' ownership over percolating groundwater in favor of an incorporeal interest or use prohibiting interference with a neighbor’s rea- ‘ sonable use of water beneath the land. Riehl v. Travelers Ins. Co., No. 83-0085, 22 Envt.Rptr.Cas. (BNA) 1544 (W.D.Pa. August 7, 1984) rev’d on other grounds, 772 F.2d 19 (3rd Cir.1985), aldo concluded that surface and sub-surface water were not property interests capable of being owned by'the insured within the meaning of the policies’ exclusions. See also, E.C. Electroplating, Inc. v. Federal Ins. Co., No. L-062919-85 (N.J.Super.Ct. February 18, 1986). A second issue in determining the application of the owned property exclusion is whether the cost of the abatement remedies on land owned by CCC is covered under the policies. The contention that coverage is excluded for remedies to be performed on land in the control of the insureds has been rejected by the Riehl court, supra. That opinion recognizes that such remedies are performed to prevent damage to third parties, and that if the preventive work were not done, the pollution would continue. See also, Bankers Trust Co. v. Hartford Accident & Indem. Co., 518 F.Supp. 371 (S.D.N.Y.1981), vacated, 621 F.Supp. 685 (S.D.N.Y.1981). A related issue and one that is dispositive of this particular motion for partial summary judgment is the extent, if any, to which the remedy designed and agreed to is intended as a remedy for damage to the CCC site proper. As noted, an exclusion of coverage under CGL policies for property owned or controlled by the insured has been recognized under Missouri law. Estrin, supra. The Special Master is persuaded that the percolating groundwater under the CCC site is not owned or controlled by CCC, and that the owned property exclusion cannot apply. United States Aviex, supra; Higday, supra; Riehl, supra. The Special Master is similarly persuaded that coverage of the abatement remedy on the" } ]

[ { "docid": "9961377", "title": "", "text": "in Georgia, the real property affected is in Florida. Therefore, the Court will follow Florida law to determine who owns the groundwater under Claussen’s property. In Florida, a landowner does not own the ground water under his land. According to the Florida Supreme Court: There can be no ownership in seeping and percolating waters in the absolute sense, because of their wandering and migratory character, unless and until they are reduced to the actual possession and control of the person claiming them.... If percolating waters escape naturally to other lands, the title of the former owner is gone.... The right of the owner to ground water underlying his land is to the usufruct of the water and not to the water itself. The ownership of the land does not carry with it any ownership of vested rights to underlying ground water not actually diverted and applied to beneficial use. Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d 663, 667 (Fla.), cert. denied, 444 U.S. 965, 100 S.Ct. 453, 62 L.Ed.2d 377 (1979). Thus, Claussen does not own the polluted ground water under the Pickett-ville site. The owned property exclusion,therefore, does not bar coverage. The second problem with Aetna’s argument that the owned property exclusion bars recovery is that evidence suggests that the hazardous substances polluted not only the ground water under Claussen’s land, but also water and land surrounding Claussen’s property. In the consent order entered on February 10, 1986, EPA included as a conclusion of law: “The presence of hazardous substances at the facility and the present and potential migration of those hazardous substances to off-site soils, ground water, and surface water constitute both an actual and a threatened ‘release’ as defined in Section 101(22) of CERCLA, 42 U.S.C. Section 9601(22).” Consent Order, at 4. At minimum, therefore, there is a disputed issue of material fact whether the toxic waste polluted property not owned by Claussen. Aetna correctly notes that no neighboring landowners have sued Claussen for property damage; nevertheless, evidence suggests surrounding land and water was damaged. Finally, even if the pollution had not yet damaged the" }, { "docid": "2859294", "title": "", "text": "to establish their insurer’s duty to defend and indemnify them in connection with a demand by the California Regional Water Quality Control Board for certain response costs due to groundwater contamination on their property. The policy contained an exclusion nearly identical to the ones at issue in Gregory, East Quincy, and here: it carved out any coverage for “ ‘[bjodily injury’ ... arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants ... [a]t or from premises owned, rented or occupied by the named insured .... ” Id. at 1477, 42 Cal.Rptr.2d 101. The insured property owners contended that the exclusion applied only if the pollution originated on the insured’s property, and that since the groundwater contamination was caused by sources off their property, the pollution exclusion did not apply. Id. at 1480, 42 Cal.Rptr.2d 101. The court rejected this contention, finding that the “at or from” language did not “speak to the origin of the pollution” and, since the claim related to pollution “at” the site, the exclusion applied. Id. Although neither Illinois nor Vermont courts appear to have addressed the question whether the absolute pollution exclusion bars coverage for pollution that originates off the insured’s premises, courts in both states have enforced such an exclusion. In Maska, the insured claimed that the insurance policy covered a suit against it for environmental contamination brought by the Vermont Department of Environmental Conservation for contamination due to wastewater discharges observed during a routine inspection. 198 F.3d at 76. The court noted that the policy contained the absolute pollution exclusion covering pollution “at or from” the insured’s premises. Id. at 78. The court held that such a pollution exclusion clause did not violate Vermont public policy. Id. at 84. In Kim v. State Farm Fire and Casualty Company, a cleaning company sought a declaratory judgment that its insurer had breached its duty to defend and indemnify after the insured settled an action for damages brought by the insured’s landlord resulting from the release of tetraehloroethane (perc) by one of the insured’s machines onto the floor and into" }, { "docid": "15238938", "title": "", "text": "migrated toward groundwater and entered groundwater. 52. Groundwater has been and continues to be contaminated. The wells that provided drinking water in Great Lakes Container Corporation’s plant and office have been contaminated and Defendant, Great Lakes Container Corporation, has discontinued use of the wells for drinking water. 53. Groundwater flow carries the contaminants toward the wetlands and Country Pond. The groundwater is used by local residents as a drinking water supply. 54. Wastes deposited on the ground have entered and may enter surface waters. 55. On or about March 10, 1980, there was a discharge of pollutants from the plant into the stream identified in Para- graph 24. The discharge was not authorized by permit. The basic coverage clause under the policy provides: The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury or B. property damage to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent[.] Occurrence is defined under the policy as follows: “[Occurrence” means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured[.] Exclusion (f) provides: This insurance does not apply ... (f) to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental^] We agree with the district court that when the policy is read against the complaint there is no ambiguity and exclusion (f) applies. The government has alleged that Great Lakes is liable because" }, { "docid": "13518869", "title": "", "text": "threatens to spread to adjacent property, to groundwater, or to other natural resources, an “owned property” exclusion will not bar coverage. Polkow, 447 N.W.2d at 857; Upjohn Co., 444 N.W.2d at 818-20; United States Aviex Co., 336 N.W.2d at 843-44. In Polkow, for example, an insured brought suit against its insurer for soil and groundwater contamination clean-up costs associated with the insured’s business operations in hauling and storing waste oil. • The insurer argued that any contamination present was limited to the insured’s own property and thereby excluded from coverage under its “owned property” provision. The Polkow court first determined that groundwater is not owned by the property owner, but rather, by the state. Thus, such contamination does not fit within the policy’s exclusion. What is significant, however, is that the court went on to announce a broad government interest in preserving the environment: Alternatively, we conclude that the alleged contamination in this case falls outside of the policy exclusion for damage to the insured’s own property.... We hold that these allegations are essentially for injury to the public interest in the well-being of the environment and natural resources of this state. Id. It is this strong public interest, the court went on to note, that vests the EPA and other regulatory organizations with the significant authority to compel cooperation, remediation, and enforcement in such matters. Another Michigan Court of Appeals has expressly adopted this broad approach. Upjohn Co., 444 N.W.2d at 819 (“We note that the improper release of toxic wastes may cause property damage not only to the actual owner of the land, but also to the government because of its independent interest, behind the titles of its citizens, in all the air and earth (i.e., its natural resources) within its domain.”). Thus, these courts recognized, in environmental contamination cleanup cases, an independent governmental interest that supersedes any “owned property” exclusion in the policies. In the present case, we decline to adopt Travélers’ contention that the contamination poses no threat to the environment. The Record of Decision, incorporated into the consent decree between the EPA and the ADC," }, { "docid": "6045388", "title": "", "text": "evidence establishes sufficient off-site contamination, and an imminent and immediate threat of further off-site contamination to warrant an exception to the owned property exclusion in this case. This Court considered the parens patriae argument in Hateo and found that it was an open question under New Jersey law whether the State had a property interest in groundwater for the purposes of the owned-property exclusion in insurance policies. Since then, the issue has been addressed by two New Jersey trial courts with conflicting results. In Reliance Ins. Co. v. Armstrong World Indus., 259 N.J.Super. 538, 614 A.2d 642 (1992), cited by Travelers, the court found that the property interest in groundwater resided in the title holder of the surface land. This holding was disagreed with in UMC/Stamford, Inc. v. Allianz Underwriters Ins. Co., 276 N.J.Super. 52, 60-61, 647 A.2d 182 (Law Div.1994). There, the court found that the State’s codified policy of protecting groundwater from contamination means that the proprietary interests in the groundwater exceeds those of the title holder of the surface land. See N.J.S.A. 58:10-23.11c-d, 58:10A-6, 58:10A-18. Moreover, the UMC/Stamford court reasoned: by its very nature, groundwater is a migra1 tory fluid which uncontrollably seeps through porous soil particles. Therefore, because under such circumstances it is nearly impossible to naturally contain such a water source, as well as any contaminants or pollutants subsumed within its path, it would be unreasonable simplistically to assign ownership rights strictly on the basis of water that may only momentarily be coursing and flowing below a property’s surface. UMC/Stamford, 276 N.J.Super. at 61, 647 A.2d 182. Accordingly, the court held that coverage for groundwater contamination was not barred by the owned property exclusion. This reasoning is persuasive. As a matter of reasonable expectations, a surface property owner does not believe that he has sole property rights in ground water beneath his property. The public policy importance of ground water leads to the conclusion that there is an interest, distinct from the property owner’s, in the ground water. The Court notes that the Appellate Division has recently held in accord. Morrone v. Harleysville Mutual Ins." }, { "docid": "21642375", "title": "", "text": "WL 257135, at *2 (W.D.Wash. Feb. 20, 1996); Unigard Mut. Ins. Co. v. McCarty’s, Inc., 756 F.Supp. 1366, 1369 (D.Idaho 1988); see also Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049, 1055 (Ind.2001). In these decisions, the courts have recognized an exception to the owned property exclusion where there is actual or imminent harm to third-party property, including the state’s environmental interest in maintaining air, soil and water quality- In Patz, the Wisconsin Department of Natural Resources discovered groundwater and soil contamination on the premises of an insured engaged in the painting of farm equipment. The Department of Natural Resources ordered the removal of barrels of paint sludge together with soil surrounding the barrels and soil surrounding a related disposal pit. Patz, 15 F.3d at 702. The insureds sought to recover from their insurers clean up costs that were incurred because the state ordered the insureds to remedy soil and groundwater contamination on their property. The insurer refused to pay for this cleanup, arguing that the contamination affected only soil and groundwater within the boundaries of the insured’s property and coverage was therefore barred by the owned property provision. Finding for the insureds, the court of appeals concluded that the owned-property exclusion set forth in the insurance policy did not bar coverage even though “to date the only contamination from the waste materials generated by the [Patzes’] painting operation is to soil and groundwater within the boundaries of the Patzes’ own land.” Id. at 705. The court held that the owned-property exclusion was inapplicable because, as the court characterized the suit, the insureds were “not seeking to recover for damage to their property,” but rather, they were seeking “to recover the cost of the liability that the [state] imposed on them for maintaining a nuisance.” Id; see also Anderson Dev. Co. v. Travelers Indem. Co., 49 F.3d 1128, 1134 (6th Cir.1995) (following Patz under Michigan law). Wells urges this court to follow the reasoning of Patz. While the Patz decision is understandable in light of its facts which depict a sympathetic insured who received erroneous advice from regulatory authorities," }, { "docid": "4225443", "title": "", "text": "correct injury to surrounding properties. See Chemical Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 788 F.Supp. 846 (D.N.J.1992). After subsequent cross-motions for summary judgment, the district court held Chemical Leaman bore the burden of proving it did not subjectively expect or intend the damage to the soil and groundwater for which it sought coverage. See Chemical Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 817 F.Supp. 1136, 1146 (D.N.J.1993). It also found Chemical Leaman’s actions were not so “reprehensible” as to objectively establish that it expected or intended to cause damage. Id. The court then denied the cross-motions for summary judgment because there remained genuine issues of fact about Chemical Leaman’s subjective intent. Id. at 1152. The district court also held as a matter of law that damage to the soil and groundwater occurred during the April 1, 1960 to April 1, 1961 policy year because Chemical Leaman began depositing rinsewater in the ponds during that time period. The district court noted that from 1960 to 1975, Chemical Lea-man disposed of 10,000 to 20,000 gallons of rinsewater into the ponds each day, but did not find that property damage occurred during that period as a matter of law. Id. Rather, it ruled that New Jersey follows the “continuous trigger” theory and that factual issues remained as to whether Chemical Lea-man suffered continuous, indivisible property damage from 1961 to 1985. The district court interpreted the pollution exclusion clauses in the LMI’s post-1971 policies as precluding coverage “when the insured has caused the discharge of contaminants or pollutants, unless the discharge was neither expected nor intended from the standpoint of the insured.” Id. at 1157. On the basis of the pollution exclusion clauses, the district court granted partial summary judgment in favor of defendants as to soil damage on the post-1971 policies. It denied summary judgment with respect to groundwater contamination, and did not address contamination to the surrounding wetlands. Id. Finally, the district court held Chemical Leaman’s failure to give timely notice of its claims did not preclude insurance coverage because the delay had not prejudiced" }, { "docid": "9961380", "title": "", "text": "to third parties, and ironically costing even [the insurance company] more money.” Bankers Trust Co. v. Hartford Accident & Indem. Co., 518 F.Supp. 371, 374 (S.D.N.Y.1981). In essence, the demonstrated danger to third person’s property is damage to another’s property, which is covered by the insurance policy: In the unique context of environmental contamination, where prevention can be far more economical than post-incident cure, it serves no legitimate purpose to assert that soil and groundwater pollution must be allowed to spread over boundary lines before they can be said to have caused the damage to other people’s property which liability insurance is intended to indemnify. Allstate, 713 F.Supp. at 41. For these three reasons, it is clear that the owned property exclusion does not bar coverage of the cleanup work in this case. II. “Sudden and Accidental” Exception to the Pollution Exclusion As noted above, the pollution exclusion clause eliminates coverage for property damage caused by discharge, release or disposal of pollutants, unless the discharge is “sudden and accidental.” The Georgia Supreme Court has read “sudden and accidental” to mean “unexpected and unintended.” Claussen, 259 Ga. at 338, 380 S.E.2d 686. Aetna argues that the insurance policy does not cover the damages at issue here because they were not “unexpected and unintended.” The Court disagrees. Aetna argues that the CGL policy covers discharges, releases or dispersal of pollution only if no one expects or intends the release. Aetna insists that Claussen’s ignorance (his “head in the sand” defense, as they call it) of the pollution is not disposi-tive. Instead, “sudden and accidental” should be interpreted objectively rather than from the point of view of the insured. Aetna insists that as long as someone, perhaps an official of the city of Jacksonville, expected or intended the disposal of toxic substances on the site, Claussen had no insurance coverage for the release of the hazardous materials. Because the term is ambiguous, the Court should construe it in favor of the insured. As the Georgia Supreme Court stated: Under Georgia rules of contract interpretation, words in a contract generally bear their usual and" }, { "docid": "17858824", "title": "", "text": "MPCA). In the present case, no actual injury occurred until the contaminants in question entered the groundwater and damaged the property of a third party — namely, the State of Minnesota. Therefore, the carriers argue, the district court appropriately concluded that the “release,” for purposes of applying the “sudden and accidental” exception, occurred when the contaminants entered the groundwater, not when they spilled out of the storage tanks onto the soil. The carriers argue that to hold otherwise would improperly divorce the interpretation of the qualified pollution exclusion from the concept of liability insurance coverage. We agree. Having established the “inextricable link” between the actual injury or injury-infaet that triggers coverage under a CGL or umbrella liability insurance policy and the relevant release for purposes of applying a qualified pollution exclusion, the carriers maintain that the language upon which Bell Lumber relies from SCSC I should be read in conjunction with the following language elsewhere in the same opinion: In the present case, the event triggering liability on the part of SCSC was the entry of perc into the groundwater. The MPCA’s later discovery of the perc in the groundwater did not create liability on the part of SCSC; the liability was created at the time the groundwater was damaged. The trial court properly held that the trigger of liability was the injury in fact, not the later discovery of that injury by the MPCA. 515 N.W.2d at 596 (emphasis added). The carriers contend that “the SCSC I court’s opinion failed to take the next logical step and address the relationship between the ihjury-in-fact which triggered coverage and the relevant release for purposes of the pollution exclusion.” Brief for Appellees at 21. We agree. We reject, as a matter of Minnesota state law, the apparent assumption stated by the SCSC I court, in dicta, that a “release,” for purposes of applying a qualified pollution exclusion, may occur upon the issuance of pollutants into or onto the insured’s own property rather than at the point of entry into the groundwater or upon other property of a third party. Thus, upon de" }, { "docid": "6045312", "title": "", "text": "important to the discussion that follows to pinpoint exactly what type of physical damage is at issue here. There is no dispute that the soil at Tank-port is severely contaminated with oil. Significantly, groundwater contamination is also a key issue in this ease. Its prominence is due not only to the expense of remediating ground water contamination, but remains an issue of importance due to the “owned property” exclusion in the CGL policies. First Pittston argues that the groundwater is the property of the state, and thus not “owned property.” Second, Pittston contends that there is evidence that the contaminated groundwater is migrating off site. As will be discussed more fully below, the law teaches that where there is some evidence of migration off site, measures necessary to stop that migration, including cleaning up “owned property,” are also covered. The issue of groundwater contamination is also dominant because Pittston argues that it was unaware of groundwater contamination for purposes of the “expected nor intended” clause in the policies. Other off-site property damage may include contamination associated with the oil/water separator. Further there is damage to the banks of Caven Creek that, as far as may be determined from the record at present, may be completely off the site. C. The Continuous Trigger Pittston maintains that the continuous trigger theory should be applied here. Of course this theory is the law of this state. Owens-Illinois, Inc. v. United Ins. Co., 138 N.J. 437, 455-56, 650 A.2d 974 (1994); Hatco, 801 F.Supp. at 1346. It holds that an occurrence triggering coverage under a CGL policy continues over a span of time, beginning from the first exposure to injurious conditions, continuing through any period of latency or while the resulting damage remains undiscovered, and ending at the time the injury manifests itself' to the insured. Pittston maintains that the contamination of the site is the product of an indivisible process of “property damage” that was in progress in 1954 when it took over the site, and continued until the day it sold the site to Ultramar. This property damage included that caused by" }, { "docid": "497574", "title": "", "text": "Ins. Co. v. McCarty’s, Inc., 756 F.Supp. 1366,1369 (D.Idaho 1988), the court concluded that the owned property exclusion did not bar coverage despite the lack of evidence that contaminants had spread to adjacent lands or into groundwater. As the court noted, “the [Environmental Protection Agency] is not bringing this suit to restore defendants’ land for defendants’ benefit. Instead the suit is brought on behalf of a third party — the public.” Id. Similarly, Suffolk County did not force the cleanup of the contamination for the benefit of F & H. Instead, concerns for public health and welfare provided the initial impetus. Therefore, the Court finds that the threat to the public due to F & H’s contamination of the sanitary system placed the damage outside the confines of the owned property exclusion. To rule otherwise and find that no third party damage could have occured would necessitate an unrealistically narrow view of the extent of potential damage, as well as the gravity of environmental pollution in general. B. Alienated Property Exclusion The Michigan Mutual policy also excludes coverage for: “property damage to premises alienated by the named insured arising out of such premises or any part thereof....” Michigan Mutual argues that, because F & H sold the property to the Savias in 1983, the exclusion applies and coverage is thus barred. “Once again, this exclusion only prohibits coverage for property damage to alienated premises, not liability to third parties.” Unigard, 756 F.Supp. at 1369. Suffolk County initiated the proceeding against the underlying plaintiffs for the benefit of the public and the environment. Accordingly, the alienated property exclusion does not apply, and Michigan Mutual owed a duty to defend F & H. Accrual of the Cause of Action AMICO points out that the site involved herein was deleted from its policy, and therefore argues that it was no longer responsible for defense or indemnification of F & H subsequent to the August 19, 1983 date of deletion. There is no clear rule within this circuit to determine v/hen an “occurrence” takes place, thereby triggering coverage. If the damage “occurs” after the" }, { "docid": "22101957", "title": "", "text": "the Consent Decree are governmentally-man-dated expenses which are fully compensa-ble under the terms of the Hartford comprehensive general liability policy.” Intel, 692 F.Supp. at 1194. We find this holding to be too broad. We affirm the district court’s holding insofar as it applies to costs incurred under the consent decree to correct any groundwater contamination that has taken place, and to mitigate any future damage that might occur from the contaminants introduced into the soil and groundwater by Intel, whether or not on Intel’s own property. Damage to groundwater is not damage to property “owned or occupied by or rented to” Intel. “Release of hazardous waste into groundwater and surface water constitutes actual harm to property in which the state and federal governments have an ownership interest.” AIU, 274 Cal.Rptr. 820 at 836; see also Cal.Wat.Code 102 (West 1971) (“All water within the State is the property of the people of the State, but the right to use of water may be acquired by appropriation in the manner provided by law”). Additionally, we hold that exclusion (k) also does not bar coverage of the costs of preventing future harm to ground water or adjacent property that might arise from contamination that has already taken place, whether such contamination has occurred on Intel’s or others’ property. We rely here on AIU and on Aerojet-General Corp. v. Superior Court, 211 Cal.App.3d 216, 257 Cal.Rptr. 621 (1989) (“Aerojet ”). The AIU court specifically stated it was not addressing the application of exclusions such as exclusion (k). AIU, 274 Cal.Rptr. at 829 n. 7. However it did suggest that where an insured is covered for damage to a third party’s property, that insured would reasonably expect coverage for efforts to mitigate that damage, even when the source of the hazard is on the insured’s own property. Id. at 839, citing Aerojet, 257 Cal.Rptr. at 627-28, quoting Globe Indent. Co. v. People, 43 Cal.App.3d 745, 118 Cal.Rptr. 75, 79 (1974) (“it would seem ‘strangely incongruous’ to the insured ‘that his policy would cover him for damages to tangible property destroyed through his negligence in allowing" }, { "docid": "4657090", "title": "", "text": "less with the accidental nature of the occurrence than with the nature of the damage.” Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 340 S.E.2d 374, 380 (1986) (emphasis in original, footnote omitted). The type of damage allegedly caused in the instant case was exactly the type of damage with respect to which the parties agreed that there would be no coverage, notwithstanding the happening of an occurrence, except under certain specified circumstances. The circumstances under which coverage would be available are specified by the exception to the pollution exclusion. Only where the release, escape or dispersal of contaminants is “sudden and accidental” would the insurance policies issued by Aetna apply. In the instant case, if the dumping of hazardous wastes at Pickettville is considered the contractually relevant release, escape or dispersal of materials, clearly this dumping was not sudden; trucks were pouring toxic waste into Pickettville for approximately nine years. From a highly technical viewpoint, of course, it might be argued that the dumping was “accidental” in that it allegedly resulted in property damage unintended by Claussen. In any event, the dumping was not sudden within the meaning of the Aetna policies. The same holds true if one considers the leaching of contaminants into the groundwater and soil surrounding the landfill as the relevant release, escape or dispersal: this leaching certainly was not sudden, even if it, too, could be said to be accidental. Either way, Aetna is under no duty to defend or indemnify. Moreover, while the foregoing indicates that policy concerns need not be taken into consideration in reaching the conclusion that the Aetna policies provide no coverage, it certainly does no disservice to public policy to hold that plaintiff’s alleged ignorance with respect to the dumping or leaching of hazardous wastes at Pickettville or of the property damage resulting therefrom is irrelevant. Plaintiff owned the land in question, and a finding that a defense or coverage should be afforded where an owner disclaims knowledge with respect to the unconscionable use of his property would “pay[] the in sured to keep his head" }, { "docid": "22101956", "title": "", "text": "active role in any settlement by the insured. In the case before us, though, the insured has had no such participation. As we have just noted, however, we believe insureds have adequate incentives to protect their own, and thus their insurers’, interests when they negotiate consent decrees. Insureds are unlikely carelessly to enter into overbroad consent decrees. Moreover, our holding here will give insurers incentives to do what Hartford has failed to do in this case: to follow more closely the insured’s efforts to meet its cleanup obligations. B. Application of Exclusion (k) The final issue considered by the district court was the extent to which coverage of cleanup costs was barred by exclusion (k). The district court acknowledged that it remained for the trier of fact to determine which pre-Consent Decree expenses related only to cleanup of Intel’s own property, and which related to property of third parties. However, as to expenses incurred pursuant to the consent decree, the court found “as a matter of law” that “all expenses incurred by Intel pursuant to the Consent Decree are governmentally-man-dated expenses which are fully compensa-ble under the terms of the Hartford comprehensive general liability policy.” Intel, 692 F.Supp. at 1194. We find this holding to be too broad. We affirm the district court’s holding insofar as it applies to costs incurred under the consent decree to correct any groundwater contamination that has taken place, and to mitigate any future damage that might occur from the contaminants introduced into the soil and groundwater by Intel, whether or not on Intel’s own property. Damage to groundwater is not damage to property “owned or occupied by or rented to” Intel. “Release of hazardous waste into groundwater and surface water constitutes actual harm to property in which the state and federal governments have an ownership interest.” AIU, 274 Cal.Rptr. 820 at 836; see also Cal.Wat.Code 102 (West 1971) (“All water within the State is the property of the people of the State, but the right to use of water may be acquired by appropriation in the manner provided by law”). Additionally, we hold that" }, { "docid": "6045387", "title": "", "text": "the owned property exclusion. Id. at 64, 550 A.2d 1235. Where the remediation is to be undertaken on the insured’s owned property, a prima facie case exists for application of the owned property exclusion. The insured then has the burden of showing actual, off-site damage caused by on-site contamination, and an imminent and immediate threat of continued off-site damage, before it can claim coverage for remediation of its own property. Id.; Hatco, 801 F.Supp. at 1361. Here, Travelers has disadvantageous^ cited examples of oil in Caven Creek, which is not on the property of the insured, in connection with its expected or intended argument. The issue of off-site pollution associated with the oil/water separator has also been raised. Pittston submits testimony that there is now off-site ground water pollution, and there is more contaminated ground water that is migrating off-site at the rate of ten to two hundred feet per year. Roland Decla. ¶¶ 18-21. The underground pools of oil are migrating off the site as well. Id. ¶¶ 25-28. The Court holds that this evidence establishes sufficient off-site contamination, and an imminent and immediate threat of further off-site contamination to warrant an exception to the owned property exclusion in this case. This Court considered the parens patriae argument in Hateo and found that it was an open question under New Jersey law whether the State had a property interest in groundwater for the purposes of the owned-property exclusion in insurance policies. Since then, the issue has been addressed by two New Jersey trial courts with conflicting results. In Reliance Ins. Co. v. Armstrong World Indus., 259 N.J.Super. 538, 614 A.2d 642 (1992), cited by Travelers, the court found that the property interest in groundwater resided in the title holder of the surface land. This holding was disagreed with in UMC/Stamford, Inc. v. Allianz Underwriters Ins. Co., 276 N.J.Super. 52, 60-61, 647 A.2d 182 (Law Div.1994). There, the court found that the State’s codified policy of protecting groundwater from contamination means that the proprietary interests in the groundwater exceeds those of the title holder of the surface land. See N.J.S.A." }, { "docid": "6045386", "title": "", "text": "pollution exclusion clause. However, with regard to the pre-1979 policies, the Court holds that this showing must be made to the trier of fact, as there is a genuine and material dispute on these issues. (iii) Owned Property Exclusion Like many CGL policies, the Travelers policies exclude from coverage damage to the insured’s own property. Pittston makes the following arguments as to why it does not bar coverage here. First, it claims that there is off-site contamination both on the surface and due to migrating groundwater pollution. Second, Pittston claims that the groundwater under Tankport is considered the property of the state, and therefore not “owned property.” Under New Jersey law, clean up of owned property is covered under a CGL policy when the clean up is necessary to prevent contamination of other property. State v. Signo Trading Int’l, Inc., 130 N.J. 51, 62-63, 612 A.2d 932 (1992) (citing Summit Assocs. v. Liberty Mutual Fire Ins. Co., 229 N.J.Super. 56, 64, 550 A.2d 1235 (App.Div.1988)). This doctrine has been described as a “narrow exception” to the owned property exclusion. Id. at 64, 550 A.2d 1235. Where the remediation is to be undertaken on the insured’s owned property, a prima facie case exists for application of the owned property exclusion. The insured then has the burden of showing actual, off-site damage caused by on-site contamination, and an imminent and immediate threat of continued off-site damage, before it can claim coverage for remediation of its own property. Id.; Hatco, 801 F.Supp. at 1361. Here, Travelers has disadvantageous^ cited examples of oil in Caven Creek, which is not on the property of the insured, in connection with its expected or intended argument. The issue of off-site pollution associated with the oil/water separator has also been raised. Pittston submits testimony that there is now off-site ground water pollution, and there is more contaminated ground water that is migrating off-site at the rate of ten to two hundred feet per year. Roland Decla. ¶¶ 18-21. The underground pools of oil are migrating off the site as well. Id. ¶¶ 25-28. The Court holds that this" }, { "docid": "21642374", "title": "", "text": "would cover only consequential damages resulting from “property damage to which the policy applies”, Tinker, supra at 254, and therefore consequential damages arising from damage to the insured’s own product, property explicitly excluded from the policy’s application, would not be covered. Id. at 26-27 (footnote omitted). However, the court of appeals reversed the district court’s granting of summary judgment in favor of the insurer, reasoning that: “neither of these provisions is sufficient to exclude coverage for all consequential damages arising from physical damage to an insured’s product.” Id. at 27. In response to Travelers’s argument, Wells points the court to a line of cases, all but one of which involve environmental contamination, exemplified by the Seventh Circuit Court of Appeals’s decision in Patz v. St. Paul Fire & Marine Ins. Co., 15 F.3d 699 (7th Cir.1994). See Anderson Dev. Co. v. Travelers Indem. Co., 49 F.3d 1128, 1135-36 (6th Cir.1995); Joslyn Manuf. Co. v. Liberty Mut. Ins. Co., 23 F.3d 1212, 1214 n. 1 (7th Cir.1994); King County v. Travelers Ins. Co., No. C94-1751Z, 1996 WL 257135, at *2 (W.D.Wash. Feb. 20, 1996); Unigard Mut. Ins. Co. v. McCarty’s, Inc., 756 F.Supp. 1366, 1369 (D.Idaho 1988); see also Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049, 1055 (Ind.2001). In these decisions, the courts have recognized an exception to the owned property exclusion where there is actual or imminent harm to third-party property, including the state’s environmental interest in maintaining air, soil and water quality- In Patz, the Wisconsin Department of Natural Resources discovered groundwater and soil contamination on the premises of an insured engaged in the painting of farm equipment. The Department of Natural Resources ordered the removal of barrels of paint sludge together with soil surrounding the barrels and soil surrounding a related disposal pit. Patz, 15 F.3d at 702. The insureds sought to recover from their insurers clean up costs that were incurred because the state ordered the insureds to remedy soil and groundwater contamination on their property. The insurer refused to pay for this cleanup, arguing that the contamination affected only soil and groundwater within the" }, { "docid": "2859293", "title": "", "text": "(E.D.Cal.1994). The policy excluded coverage for “ ‘[b]odily injury’ ... arising out of the actual, alleged or threatened emission, discharge, dispersal, seepage, migration, release or escape of ‘pollutants’ ... [a]t or from any premises, site or location which is or was at any time owned or occupied by ... any insured ...” Id. at 979. Plaintiff insured argued, as CHA does here, that the pollution exclusion did not apply to the underlying litigation because the pollution originated off-site. Id. at 980. The court found, however, that the language of the exclusion included pollution “at” as well as “from” the site, so that there was “no limiting language as to the origination of the pollution.” Id. The court characterized the insured’s argument to the contrary as “sophistry,” citing Gregory, 948 F.2d at 206, and observed that Plaintiff insured did not contest that the pollution was “at the site.” Id. Finally, HARRG cites Legarra v. Federated Mutual Ins. Co., 35 Cal.App.4th 1472, 1476, 42 Cal.Rptr.2d 101, 103 (1995). There, individual property owners brought a declaratory action seeking to establish their insurer’s duty to defend and indemnify them in connection with a demand by the California Regional Water Quality Control Board for certain response costs due to groundwater contamination on their property. The policy contained an exclusion nearly identical to the ones at issue in Gregory, East Quincy, and here: it carved out any coverage for “ ‘[bjodily injury’ ... arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants ... [a]t or from premises owned, rented or occupied by the named insured .... ” Id. at 1477, 42 Cal.Rptr.2d 101. The insured property owners contended that the exclusion applied only if the pollution originated on the insured’s property, and that since the groundwater contamination was caused by sources off their property, the pollution exclusion did not apply. Id. at 1480, 42 Cal.Rptr.2d 101. The court rejected this contention, finding that the “at or from” language did not “speak to the origin of the pollution” and, since the claim related to pollution “at” the site, the exclusion applied." }, { "docid": "4657091", "title": "", "text": "resulted in property damage unintended by Claussen. In any event, the dumping was not sudden within the meaning of the Aetna policies. The same holds true if one considers the leaching of contaminants into the groundwater and soil surrounding the landfill as the relevant release, escape or dispersal: this leaching certainly was not sudden, even if it, too, could be said to be accidental. Either way, Aetna is under no duty to defend or indemnify. Moreover, while the foregoing indicates that policy concerns need not be taken into consideration in reaching the conclusion that the Aetna policies provide no coverage, it certainly does no disservice to public policy to hold that plaintiff’s alleged ignorance with respect to the dumping or leaching of hazardous wastes at Pickettville or of the property damage resulting therefrom is irrelevant. Plaintiff owned the land in question, and a finding that a defense or coverage should be afforded where an owner disclaims knowledge with respect to the unconscionable use of his property would “pay[] the in sured to keep his head in the sand.” Waste Management, supra, 340 S.E.2d at 381. At any rate, in drafting the pollution exclusion clause, the insurance industry clearly intended to limit coverage for pollution-related damages to situations where such damages are caused by sudden pollution incidents involving equipment malfunctions, explosions and the like. The word sudden was intended by the industry to have its usual temporal meaning, see Note, The Pollution Exclusion Through the Looking Glass, 74 Geo.L.J. 1237, 1252-53 & n. 79 (1986); Hendrick & Wiezel, The New Commercial General Liability Forms — An Introduction and Critique, 1986 Ped.Ins. & Corp.Couns.Q. 319, 343-46, and a reasonable insured with any degree of common sense would assume the word to have that usual meaning. See generally Greer v. IDS Life Ins. Co., 149 Ga.App. 61, 253 S.E.2d 408 (1979). Only in the minds of hypercreative lawyers could the word “sudden” be stripped of its essential temporal attributes. While not all courts have agreed in this regard, recent decisions have recognized, with increasing frequency, that the pollution exclusion does mean just what" }, { "docid": "2221021", "title": "", "text": "to adjacent property. Although Grace correctly notes that the burden of proving that coverage is excluded is on the insurer, when an insurance policy includes an unambiguous owned-property exclusion, this burden is met when the^ insurer makes a prima facie showing that the remedial measures in question were performed on the insured’s property. It is then up to the insured to rebut that showing of coverage exclusion by establishing that those measures were taken only to prevent continuing or imminent or immediate future damage to unowned property. The Insurers contend that Grace has not submitted proof of any third party property damage or threat of damage that would trigger coverage not excluded by the owned-property exclusions. Yet the Insurers concede that a small percentage of the contamination at the Hateo site is of groundwater. Grace has also submitted proof of damage to or threatened damage to groundwater, which it contends is property of the state. The question of whether the state’s parens patriae interest in groundwater constitutes “property” within the meaning of an insurance contract is an open question in New Jersey. See Diamond Shamrock Chemicals Company v. Aetna Cas. & Sur. Co., 231 N.J.Super. 1, 15, 554 A.2d 1342 (App.Div.1989). Given the lack of adequate briefing on the issue, and a factual record that is far from undisputed, the Court will not decide this unresolved question. See id. Although Grace seeks a declaration that the owned-property exclusions do not bar coverage for Hatco’s claims against Grace, the inadequate record presented in support of this motion, together with the fact sensitive nature of the issue involved, makes inappropriate any blanket declaration of the parties’ rights under the exclusion. On the basis of the record before the Court, it is far from clear whether any of the damage at the Hateo site is excluded by the owned-property exclusion. Therefore, Grace’s motion will be denied. Should the record indicate that there is no past or present injury to third party property, the owned-property exclusions will prevent Grace from recovering for remediation actions taken on owned property. In the wake of State v." } ]

[ { "docid": "6221834", "title": "", "text": "1919, for the proposition that “the relevant due process inquiry on [a constitutional challenge in the sentencing context] is only whether the sentence at issue is ‘based on an arbitrary distinction,’ or, instead, on ‘a rational sentencing scheme’ ”); cf. In re Kemmler, 136 U.S. 436, 449, 10 S.Ct. 930, 34 L.Ed. 519 (1890) (holding that, in the context of capital punishment, the Due Process Clause “requires that no different or higher punishment shall be imposed upon one than is imposed upon all for like offenses. But it was not designed to interfere with the power of the State to protect the lives, liberties and property of its citizens”). The Supreme Court expressly held in Gregg that the death penalty does not violate per se the Eighth Amendment’s prohibition of cruel and unusual punishment, and the defendants in the instant case do not allege on appeal that the FDPA makes arbitrary distinctions or is being arbitrarily applied. Accordingly, under the standard articulated by the Supreme Court in Chapman, capital punishment cannot constitute a per se violation of the Due Process Clause. CONCLUSION In sum, we hold that (1) we have jurisdiction to entertain this appeal, (2) the constitutional challenge was ripe for consideration prior to trial, (3) to the extent the defendants claim relies upon the Eighth Amendment, it is foreclosed by the Supreme Court’s decision in Gregg v. Georgia, and (4) the FDPA does not violate the Due Process Clause of the Fifth Amendment. Accordingly, we reverse the April 25, 2002 order of the District Court and remand the cause for further proceedings consistent with this opinion. . On August 22, 2002, the grand jury returned a further superseding indictment that added no new charges or defendants but, instead, set forth the statutory aggravating factors that, pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), must now be alleged in the indictment and found by a jury in capital cases. . The Court also noted that there have been at least twenty additional capital defendants exonerated in the past decade on grounds other" } ]

[ { "docid": "22238587", "title": "", "text": "This argument was rejected by the district court. In Ring, the Court held that an aggravating factor necessary for imposition of the death penalty has to be found by a jury; it cannot be determined by the sentencing judge. 536 U.S. at 609, 122 S.Ct. 2428. Although Ring was a Sixth Amendment case, other circuits have unanimously found that the holding applies with equal force in the context of a Fifth Amendment challenge to the lack of statutory aggravating factors in an indictment charging a death-eligible crime under the FDPA. See United States v. Allen, 406 F.3d 940, 942-43 (8th Cir.2005) (en banc); United States v. Robinson, 367 F.3d 278, 284 (5th Cir.2004); United States v. Higgs, 353 F.3d 281, 297-98 (4th Cir.2003). Accord United States v. LeCroy, 441 F.3d 914, 920 (11th Cir. March 2, 2006) (assuming without deciding that at least one statutory aggravating factor must be included in the indictment). We agree with our sister circuits that at least one statutory aggravating factor, which is necessary to elevate the maximum sentence from life imprisonment to death, must be charged in the indictment. Here, Brown concedes that all of the relevant statutory aggravating factors were alleged in the indictment. Nevertheless, he argues that the FDPA is facially unconstitutional anyway because it does not require those factors to be alleged in the indictment. Essentially, Brown argues that the grand jury cannot “fix” the defect in the statute by simply alleging the aggravating factors in the indictment; according to Brown, only Congress can cure the deficiency in the law. We recently rejected that argument in LeCroy. Id. at 920-21. “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). As the Fifth Circuit recently held, [t]he FDPA is not facially unconstitutional under the Indictment Clause. Although [the defendant] is correct to point out that nothing in the FDPA requires prosecutors" }, { "docid": "23354608", "title": "", "text": "the defendant setting forth the aggravating factor or factors that the government proposes to prove. 18 U.S.C. § 3593(a). LeCroy argues that this alleged inconsistency renders the statute facially unconstitutional. Every circuit court of appeals which has addressed this argument has rejected it. United States v. Allen, 406 F.3d 940, 949 (8th Cir.2005); United States v. Barnette, 390 F.3d 775, 788-90 (4th Cir.2004); United States v. Robinson, 367 F.3d 278, 290 (5th Cir.2004). We agree with our sister circuits. The major flaw in LeCroy’s argument is that nothing in the Act forbids, or is inconsistent with, prosecutors’ taking of the additional step of including the statutory aggravating factors in the indictment and submitting same to the grand jury. Indeed, a statute will seldom expressly provide for submitting elements of an offense to the grand jury. It is simply well-established law — the background against which statutes are enacted — which indicates that elements of a crime should be submitted to the grand jury. What the defendant classifies as an improper “cure” of a problem is really the government’s attempt to comply with the complex legal backdrop of federal death penalty prosecutions. Accordingly, we reject LeCroy’s assertion that the Federal Death Penalty Act is unconstitutional on its face in light of Ring and related cases. LeCroy’s second challenge to the constitutionality of the FDPA is based upon the same case law, i.e. Ring and related cases. LeCroy expands his argument beyond our assumption that at least one statutory aggravating factor must be charged in the indictment. LeCroy argues that all aggravating factors — both statutory and nonstatutory — that the government intends to present against the defendant must be included in the indictment. As noted above, the issue with regard to statutory aggravating factors is moot in this case. With respect to nonstatutory aggravating factors, we are once again not the first court to have faced this issue. In United States v. Higgs, 353 F.3d 281, 298-99 (4th Cir.2003), the Fourth Circuit held that indictments in death-eligible murder cases need only include one statutory aggravating factor in order for the FDPA" }, { "docid": "10310008", "title": "", "text": "is the practice that the Department of Justice has adopted after Ring, and it preserves the constitutionality of FDPA prosecutions. See United States v. Barnette, 390 F.3d 775, 788-90 (4th Cir.2004); Robinson, 367 F.3d at 290. V. In sum, we conclude that although the Fifth Amendment requires that at least one statutory aggravating factor and the requisite mental state be found by the grand jury and charged in the indictment in FDPA prosecutions, the failure to do so in this pre-Ring case was harmless beyond a reasonable doubt; and we conclude that Ring did not render the FDPA unconstitutional. Having complied with the Supreme Court’s instructions that we give Allen’s case further consideration in light of Ring, we affirm the judgment of the district court for the reasons stated above. . The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri. . We note that the government’s failure to charge any statutory aggravating factors or the mens rea requirement in the indictment was not the product of malice toward Allen or defiance of the law. Rather, the government was complying with the law as it then existed: Walton remained good law and Ring was years away. Likewise, after Ring was decided, the Department of Justice brought itself into compliance with the changed legal landscape by adopting a policy of including these factors in indictments in FDPA prosecutions. See Robinson, 367 F.3d at 284 n. 6." }, { "docid": "10309982", "title": "", "text": "Ring held that aggravating factors are the functional equivalent of elements of a capital offense for Sixth Amendment purposes, and consequently overruled Walton in relevant part. Id. at 609, 122 S.Ct. 2428. The Supreme Court granted Allen’s petition for a writ of certio-rari, vacated our judgment, and remanded the case to us for further consideration in light of Ring. Allen v. United States, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002). On remand, a divided panel of this court concluded that it'was error not to charge at least one statutory aggravating factor in Allen’s indictment, and that although the error was not structural, the indictment defect was not harmless beyond a reasonable doubt. United States v. Allen, 357 F.3d 745, 748-58 (8th Cir.2004). We subsequently granted rehearing en banc and vacated the panel’s’ judgment. We now confront the following questions:' (1) Does the Fifth Amendment require that at least one statutory aggravating factor and the mens rea requirement be found by the grand jury and charged in the indictment? (2) If Allen’s indictment was defective, was the error structural or subject to review for harmless error? (3) If our review is for harmless error, was the error harmless beyond a reasonable doubt? (4) Is the FDPA unconstitutional because it directs the government to charge aggravating factors in a notice of intent to seek the death penalty rather than in an indictment? We address these issues seriatim and, ultimately, we again affirm Allen’s convictions and sentence. I. Ring was a case about a defendant’s Sixth Amendment right to have capital aggravating factors proven to the petit jury beyond a reasonable doubt because they are facts that increase the penalty for his crime beyond the otherwise applicable statutory maximum. In Allen’s case, the petit jury made the findings that Ring expressly requires. Ring did not address whether the Fifth Amendment also requires capital aggravating factors to be found by the grand jury and included in the indictment. Nonetheless, we think that Ring necessarily implies such a Fifth Amendment requirement. Ring did not address the indictment issue because it involved a" }, { "docid": "16462934", "title": "", "text": "Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”). See also United States v. Jackson, 327 F.3d 273, 286-87 (4th Cir.2003) (Neimeyer, J., cone.) (concluding, after Ring, that an aggravating factor necessary to the imposition of the federal death penalty must also be alleged in the indictment); United States v. Higgs, 353 F.3d 281, 297 (4th Cir.2003) (“any factor required to be submitted to the jury must be included in the indictment”); United States v. Regan, 221 F.Supp.2d 672, 679 (E.D.Va.2002) (“[I]n light of Jones’s requirement that ‘any fact ... that increases the maximum penalty for a crime must be charged in an indictment,’ it appears to be a foregone conclusion that aggravating factors that are essential to the imposition of the death penalty must appear in the indictment.”) (quoting Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215). We start, then, from the premise that inclusion in Allen’s indictment of at least one statutory aggravating factor from 18 U.S.C. § 3592(c) was constitutionally mandated. See Apprendi, 530 U.S. at 490 n. 15, 120 S.Ct. 2348 (“The indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted.”) (quoting United States v. Reese, 92 U.S. 214, 232-33, 23 L.Ed. 563 (1875) (Clifford, J., dissenting) (emphasis added)). Allen argues that his indictment included no statutory aggravators and thus his death sentence cannot stand. The government defends the sentence on two grounds. First, the government argues that Allen’s indictment sufficiently alleged the requisite elements for imposition of the death penalty. Second, if error is found, the government argues that the error is harmless. We find neither argument persuasive. A. Sufficiency of the Indictment “To be sufficient, an indictment must ‘contain[ ] the elements of the offense charged.’” United States v. Olson 262 F.3d 795, 799 (8th Cir.2001) (quoting Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41" }, { "docid": "5267438", "title": "", "text": "§ 3593(b). Ring left open, however, whether the Indictment Clause of the Fifth Amendment requires that a grand jury indict aggravating factors for a defendant to be eligible for the death penalty. In light of the Supreme Court’s ruling that aggravating factors “operate as the ‘functional equivalent of an element of a greater offense,’ ” thus requiring jury determination, the Fourth Circuit has determined that the Indictment Clause mandates submission of statutory aggravating factors to the grand jury. See United States v. Higgs, 353 F.3d 281, 298 (4th Cir.2003) (“[Tjhose intent and aggravating factors which the government intends to rely upon to render a defendant death-eligible under the FDPA are the functional equivalent of elements of the capital offenses and must be charged in the indictment, submitted to the petit jury, and proved beyond a reasonable doubt”)- In this case, the government did precisely this: The list of statutory aggravating factors was submitted to the grand jury, which then returned a Notice of Special Findings. Yet, Le contends that because there is no provision in the FDPA for a Notice of Special Findings, the government cannot cure the constitutional Indictment Clause defect in the statute by simply inventing this Notice of Special Findings procedure out of whole cloth. While Le is correct that nothing in the FDPA requires prosecutors to charge aggravating factors in an indictment, he fails to note, as the Fifth Circuit correctly observed, that nothing in the FDPA prohibits such a procedure and thus “[t]he government can easily comply with both its constitutional obligations (by first going to the grand jury) and its statutory obligations (by later filing a § 3593(a) notice of intention to seek the death penalty).” United States v. Robinson, 367 F.3d 278, 290 (5th Cir.2004); cf. United States v. McAllister, 272 F.3d 228, 233 (4th Cir.2001) (noting, while interpreting federal drug statute, that “the mere fact that the statute is silent regarding whether sentencing factors must be treated as elements [of the offense that must be alleged in the indictment and proven to the jury beyond a reasonable doubt] in order for those" }, { "docid": "22238586", "title": "", "text": "that participation in such act or acts constituted a reckless disregard for human life, and the victim died as a direct result of such act or acts; and 6) committed the offense in an especially heinous, cruel, or depraved manner in that it involved serious physical abuse to the victim. Special findings two through five correspond to the mens rea requirements of 18 U.S.C. § 3591(a)(2), and special finding number six corresponds to one of the sixteen statutory aggravating factors, found at 18 U.S.C. § 3592(c)(6). In a superseding indictment, the grand jury made one additional special finding, charging that Brown committed the offenses in the expectation of the receipt of something of pecuniary value, which corresponds to another of the sixteen statutory aggravating factors, found at 18 U.S.C. § 3592(c)(8). Relying on the Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Brown argues that the FDPA is facially unconstitutional because it does not require the government to allege the necessary aggravating factors in the indictment. This argument was rejected by the district court. In Ring, the Court held that an aggravating factor necessary for imposition of the death penalty has to be found by a jury; it cannot be determined by the sentencing judge. 536 U.S. at 609, 122 S.Ct. 2428. Although Ring was a Sixth Amendment case, other circuits have unanimously found that the holding applies with equal force in the context of a Fifth Amendment challenge to the lack of statutory aggravating factors in an indictment charging a death-eligible crime under the FDPA. See United States v. Allen, 406 F.3d 940, 942-43 (8th Cir.2005) (en banc); United States v. Robinson, 367 F.3d 278, 284 (5th Cir.2004); United States v. Higgs, 353 F.3d 281, 297-98 (4th Cir.2003). Accord United States v. LeCroy, 441 F.3d 914, 920 (11th Cir. March 2, 2006) (assuming without deciding that at least one statutory aggravating factor must be included in the indictment). We agree with our sister circuits that at least one statutory aggravating factor, which is necessary to elevate the maximum sentence from" }, { "docid": "10309981", "title": "", "text": "to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) and (j)(1). After the penalty phase, the petit jury determined that a sentence of life imprisonment was justified on Count I and that a sentence of death was justified on Count II. The district court sentenced Allen accordingly. On appeal, a divided panel of this court affirmed Allen’s convictions and sentence in all respects. United States v. Allen, 247 F.3d 741 (8th Cir.2001). In particular, we rejected his argument that the Fifth Amendment required the statutory aggravating factors to have been charged by the grand jury and included in the indictment. We applied the holding of Walton v. Arizona, 497 U.S. 639, 647-49, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), that aggravating factors are not elements of a capital offense for Sixth Amendment purposes. Allen, 247 F.3d at 761-64. Allen petitioned the United States Supreme Court for a writ of certiorari. While Allen’s petition was pending, the Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Ring held that aggravating factors are the functional equivalent of elements of a capital offense for Sixth Amendment purposes, and consequently overruled Walton in relevant part. Id. at 609, 122 S.Ct. 2428. The Supreme Court granted Allen’s petition for a writ of certio-rari, vacated our judgment, and remanded the case to us for further consideration in light of Ring. Allen v. United States, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002). On remand, a divided panel of this court concluded that it'was error not to charge at least one statutory aggravating factor in Allen’s indictment, and that although the error was not structural, the indictment defect was not harmless beyond a reasonable doubt. United States v. Allen, 357 F.3d 745, 748-58 (8th Cir.2004). We subsequently granted rehearing en banc and vacated the panel’s’ judgment. We now confront the following questions:' (1) Does the Fifth Amendment require that at least one statutory aggravating factor and the mens rea requirement be found by the grand jury and charged in the indictment? (2) If Allen’s indictment" }, { "docid": "10310007", "title": "", "text": "that Allen’s grand jury would have declined to charge a statutory aggravating factor or the mens rea requirement in order to avoid exposing Allen to the death penalty. The grand jury was told that Allen would be eligible to receive the death penalty if he was indicted for the crimes alleged when the Assistant United States Attorney read 18 U.S.C. § § 924 and 2113, including their penalty provisions, to the grand jury immediately before it began its deliberations. TV. Finally, we turn to Allen’s constitutional challenge to the FDPA. He argues that the Act is unconstitutional after Ring because it directs the government to charge aggravating factors and the requisite mental state in a notice of intent to seek the death penalty rather than in an indictment. We disagree. While it is true that the FDPA directs the government to charge these factors in a notice of intent to seek the death penalty, nothing in the Act precludes the government from also submitting them to the grand jury for inclusion in the indictment. This is the practice that the Department of Justice has adopted after Ring, and it preserves the constitutionality of FDPA prosecutions. See United States v. Barnette, 390 F.3d 775, 788-90 (4th Cir.2004); Robinson, 367 F.3d at 290. V. In sum, we conclude that although the Fifth Amendment requires that at least one statutory aggravating factor and the requisite mental state be found by the grand jury and charged in the indictment in FDPA prosecutions, the failure to do so in this pre-Ring case was harmless beyond a reasonable doubt; and we conclude that Ring did not render the FDPA unconstitutional. Having complied with the Supreme Court’s instructions that we give Allen’s case further consideration in light of Ring, we affirm the judgment of the district court for the reasons stated above. . The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri. . We note that the government’s failure to charge any statutory aggravating factors or the mens rea requirement in the indictment was not the product of malice toward Allen" }, { "docid": "7865186", "title": "", "text": "statistical or theoretical possibility that a defendant might be innocent. Quinones, 313 F.3d at 63. “Since 1878, the Supreme Court has upheld challenges to death penalty statutes based upon the Due Process Clause as well as the Eighth Amendment.” Id. at 65 (citing cases). Specifically, the Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), “was presented with, considered, and declined to adopt the argument that capital punishment unconstitutionally deprives innocent persons who have been sentenced to death of the opportunity to exonerate themselves.” Id. at 65-66. Under our Constitution, the government explicitly may, with due process of law, deprive a person of life. U.S. Const, amend. V. Honken’s argument is a policy matter for Congress. We reject Honken’s invitation to hold the death penalty unconstitutional based on the possibility innocent people may be executed. K. Submission of Statutory Aggravating Factors to the Grand Jury Honken argues the penalty provisions of the ADAA, 21 U.S.C. § 848(e)-(r), are unconstitutional after Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), because the ADAA “grants authority to allege aggravating factors exclusively to the prosecutor, while the Constitution requires that such elements be presented to a grand jury and charged in an indictment.” In Ring, the Supreme Court held the Sixth Amendment does not “allow[ ] a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.” Ring, 536 U.S. at 609, 122 S.Ct. 2428. Instead, “the Sixth Amendment requires that [such aggravating factors] be found by a jury.” Id. Interpreting Ring, our court further extrapolated, although “Ring did not address whether the Fifth Amendment also requires capital aggravating factors to be found by the grand jury and included in the indictment ... we think that Ring necessarily implies such a Fifth Amendment requirement.” United States v. Allen, 406 F.3d 940, 942 (8th Cir.2005) (en banc). Thus, “the Fifth Amendment requires at least one statutory aggravating factor and the mens rea requirement to be found by the grand jury and charged in the indictment.”" }, { "docid": "10309985", "title": "", "text": "prosecutions must also be found by the grand jury and charged in the indictment in federal prosecutions. We therefore conclude that the Fifth Amendment requires at least one statutory aggravating factor and the mens rea requirement to be found by the grand jury and charged in the indictment. See United States v. Robinson, 367 F.3d 278, 284 (5th Cir.), cert. denied, — U.S. —, 125 S.Ct. 623, 160 L.Ed.2d 466 (2004); United States v. Higgs, 353 F.3d 281, 299 (4th Cir.2003), cert. denied, — U.S. —, 125 S.Ct. 627, 160 L.Ed.2d 456 (2004); United States v. Quinones, 313 F.3d 49, 53 n. 1 (2d Cir.2002), cert. denied, 540 U.S. 1051, 124 S.Ct. 807, 157 L.Ed.2d 702 (2003). The indictment must include at least one statutory aggravating factor to satisfy the Fifth Amendment because that is what is required to elevate the available statutory maximum sentence from life imprisonment to death. In turn, at least one of the statutory aggravating factors found by the petit jury in imposing the death sentence must have been one of the statutory aggravating factors charged by the grand jury in the indictment. See Higgs, 353 F.3d at 299 n. 7. The same is true of the mens rea requirement. Having reached this conclusion, it is clear that Allen’s indictment suffers a Fifth Amendment defect. The petit jury found two statutory aggravating factors in sentencing him to death: that Allen “in the commission of the offense, or in escaping apprehension ..., knowingly create[d] a grave risk of death to one or more persons in addition to Richard Heflin,” and that he “committed] the offense in the expectation of the receipt of anything of pecuniary value.” The petit jury also found the requisite mental state in sentencing Allen to death: that he “intentionally inflicted serious bodily injury which resulted in the death of Richard Heflin.” The government had included these factors and the mens rea requirement in its notice of intent to seek the death penalty, but they were not charged in the indictment because Allen’s prosecution preceded Ring by years. Allen presciently raised a Jones-type objection" }, { "docid": "7865187", "title": "", "text": "2428, 153 L.Ed.2d 556 (2002), because the ADAA “grants authority to allege aggravating factors exclusively to the prosecutor, while the Constitution requires that such elements be presented to a grand jury and charged in an indictment.” In Ring, the Supreme Court held the Sixth Amendment does not “allow[ ] a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.” Ring, 536 U.S. at 609, 122 S.Ct. 2428. Instead, “the Sixth Amendment requires that [such aggravating factors] be found by a jury.” Id. Interpreting Ring, our court further extrapolated, although “Ring did not address whether the Fifth Amendment also requires capital aggravating factors to be found by the grand jury and included in the indictment ... we think that Ring necessarily implies such a Fifth Amendment requirement.” United States v. Allen, 406 F.3d 940, 942 (8th Cir.2005) (en banc). Thus, “the Fifth Amendment requires at least one statutory aggravating factor and the mens rea requirement to be found by the grand jury and charged in the indictment.” Id. at 943 (citations omitted). Consistent with Ring and Allen, the government in Honken’s case included the aggravating factors in a superseding indictment, and the grand jury returned a superseding indictment which included all the aggravating factors ultimately found by the petit jury. Honken next charges the government was not permitted to “amend” the ADAA by submitting aggravating factors to the grand jury and including them in the indictment. Honken contends, because the ADAA contemplates the government will file a separate notice of statutory aggravating factors, the government is thereby prohibited from submitting the same aggravating factors to the grand jury, and such a prohibition is unconstitutional under Ring. In Allen, we rejected the precise contention Honken makes here, explaining: While it is true that the FDPA directs the government to charge these factors in a notice of intent to seek the death penalty, nothing in the Act precludes the government from also submitting them to the grand jury for inclusion in the indictment. This is the practice that the Department of Justice has adopted" }, { "docid": "10309984", "title": "", "text": "state prosecution, and the Fifth Amendment’s grand jury requirement has not been construed to apply to the states. The same is true of the predecessor to Ring, Apprendi v. New Jersey, 530 U.S. 466, 477 n. 3, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We therefore look to the predecessor to Apprendi, Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), which did involve a federal prosecution. There, we find the rule that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. at 243 n. 6, 119 S.Ct. 1215; see also Apprendi, 530 U.S. at 476, 120 S.Ct. 2348 (same (quoting Jones)). In other words, the same facts that the Sixth Amendment requires to be proven to the petit jury beyond a reasonable doubt in state and federal prosecutions must also be found by the grand jury and charged in the indictment in federal prosecutions. We therefore conclude that the Fifth Amendment requires at least one statutory aggravating factor and the mens rea requirement to be found by the grand jury and charged in the indictment. See United States v. Robinson, 367 F.3d 278, 284 (5th Cir.), cert. denied, — U.S. —, 125 S.Ct. 623, 160 L.Ed.2d 466 (2004); United States v. Higgs, 353 F.3d 281, 299 (4th Cir.2003), cert. denied, — U.S. —, 125 S.Ct. 627, 160 L.Ed.2d 456 (2004); United States v. Quinones, 313 F.3d 49, 53 n. 1 (2d Cir.2002), cert. denied, 540 U.S. 1051, 124 S.Ct. 807, 157 L.Ed.2d 702 (2003). The indictment must include at least one statutory aggravating factor to satisfy the Fifth Amendment because that is what is required to elevate the available statutory maximum sentence from life imprisonment to death. In turn, at least one of the statutory aggravating factors found by the petit jury in imposing the death sentence must have been one of" }, { "docid": "13733202", "title": "", "text": "unadjudi-cated crimes, the capital process is reduced from the two-tiered screening process suggested by Blakely (grand jury and petit jury screening for judge) to a process without any tiers at all (capital jury screening unadjudicated crimes for itself). If our goal is a two-tiered system of procedural protections, then it is hard to imagine what could be more “legally essential” than ensuring that the unadjudicated prior crimes invoked against Morris and Green — allegations that may, in the end, tip the scale from life to death — be charged in their indictments. B. Existing Circuit Court Law on Aggravating Factors and the Indictment Clause Three circuits, all issuing opinions pre-Blakely, have disagreed with this Court’s reasoning, concluding that only one statutory aggravating factor — the bare minimum necessary to qualify a particular defendant for a sentence of death under the FDPA — must be alleged in the indictment. They held that additional statutory and non-statutory factors need not be so alleged, even if the government relies on them in seeking the death penalty. See United States v. Higgs, 353 F.3d 281 (4th Cir.2003); United States v. Robinson, 367 F.3d 278 (5th Cir.2004); Allen, 357 F.3d 745 (8th Cir.2004), rev’d en banc, 406 F.3d 940 (8th Cir.2005). In Robinson, a decision representative of all three circuit opinions, the defendant challenged his conviction and death sentence under the Fifth Amendment, arguing that the indictment failed to charge the statutory aggravating factors that rendered him eligible for the death penalty. See 367 F.3d at 281. The Robinson Court construed Ring’s holding as hinging on death-eligibility: “where an aggravating-factor renders a defendant eligible for death, it is ‘the functional equivalent of an element of a greater offense’ and therefore must be proven to a jury beyond a reasonable doubt.” Id. at 284 (emphasis added). Accordingly, the court held that “the government is [only] required to charge, by indictment, the statutory aggravating factors it intends to prove to render a defendant eligible for the death penalty, and its failure to do so ... is constitutional error.” Id. (emphasis added); see also Allen, 357 F.3d at" }, { "docid": "13733203", "title": "", "text": "States v. Higgs, 353 F.3d 281 (4th Cir.2003); United States v. Robinson, 367 F.3d 278 (5th Cir.2004); Allen, 357 F.3d 745 (8th Cir.2004), rev’d en banc, 406 F.3d 940 (8th Cir.2005). In Robinson, a decision representative of all three circuit opinions, the defendant challenged his conviction and death sentence under the Fifth Amendment, arguing that the indictment failed to charge the statutory aggravating factors that rendered him eligible for the death penalty. See 367 F.3d at 281. The Robinson Court construed Ring’s holding as hinging on death-eligibility: “where an aggravating-factor renders a defendant eligible for death, it is ‘the functional equivalent of an element of a greater offense’ and therefore must be proven to a jury beyond a reasonable doubt.” Id. at 284 (emphasis added). Accordingly, the court held that “the government is [only] required to charge, by indictment, the statutory aggravating factors it intends to prove to render a defendant eligible for the death penalty, and its failure to do so ... is constitutional error.” Id. (emphasis added); see also Allen, 357 F.3d at 748; Higgs, 353 F.3d at 298. Under the circuit courts’ holdings, prior unadjudicated crimes — non-statutory ag-gravators under the FDPA — would be presented to the sentencing jury without the protective screening of a grand jury indictment because they are not a prerequisite to death-eligibility and therefore do not elevate the available statutory maximum sentence from life imprisonment to death. As discussed supra, this outcome is irreconcilable with the Fifth Amendment, Blakely, and even Ring. In fact, the Fifth Circuit in Robinson at once downplayed and affirmed the role of the grand jury. Despite its holding’s inconsistency with the principles of the Fifth Amendment, the court invoked Supreme Court precedent to assert the two essential functions of the indictment process: 1) notice to the defendant of the charge so that s/he may prepare a defense; and 2) “interposing] the public into the charging decision such that a defendant is not subject to jeopardy for a crime alleged only by the prosecution.” Robinson, 367 F.3d at 287. While, under the FDPA, the government can fulfill its" }, { "docid": "15638271", "title": "", "text": "Amendment has not been construed to include the Fifth Amendment right to presentment or indictment of a Grand Jury) (internal citation omitted)). Notwithstanding Ring’s Sixth Amendment based holding, a number of circuits have interpreted Ring, when read in conjunction with Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), to require that at least one statutory aggravating factor and the mens rea requirement be charged in the indictment, pursuant to the Fifth Amendment’s grand jury requirement, reasoning that mens rea and statutory aggravators, in a capital case, are the functional equivalents of elements of the offense. See United States v. Allen, 406 F.3d 940, 943 (8th Cir.2005) (en banc) (holding “the Fifth Amendment requires at least one statutory aggravating factor and the mens rea requirement to be found by the grand jury and charged in the indictment ... because that is what is required to elevate the available statutory maximum sentence from life imprisonment to death”); United States v. Robinson, 367 F.3d 278, 284 (5th Cir.2004) (“Ring’s Sixth Amendment holding applies with equal force in the context of a Fifth Amendment Indictment Clause challenge ... [and][a]s a result, the government is required to charge, by indictment, the statutory aggravating factors it intends to prove to render a defendant eligible for the death penalty, and its failure to do so in this case is constitutional error.”); United States v. Higgs, 353 F.3d 281, 299 (4th Cir.2003) (“So long as one statutory aggravating factor is alleged in the indictment and the petit jury finds that statutory aggravating factor to exist, the indictment is not defective as to the capital offense charged.”); (United States v. Quinones, 313 F.3d 49, 53 n. 1 (2d Cir.2002)) (noting that Ring now requires statutory aggravating factors be “alleged in the indictment and found by a jury in capital cases”). Although the Sixth Circuit has not directly commented on Ring’s application to the Fifth Amendment’s grand jury requirement, this Court finds persuasive the reasoning set forth by the Eighth, Fifth, Fourth, and Second Circuits, and holds that both the mens rea and at" }, { "docid": "15638270", "title": "", "text": "least one aggravating factor be charged to the grand jury, and because the FDPA does not provide as such, the FDPA is unconstitutional. In Ring v. Arizona, 536 U.S. 584, 588, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Supreme Court held that the Sixth Amendment required that the aggravating circumstances necessary for imposition of the death penalty be found by the jury beyond a reasonable doubt, reasoning that under the Sixth Amendment, all factors increasing the penalty for a crime beyond the statutory maximum must be found by a petit jury. Id. Ring, however, did not require that the aggravating factors be charged to a grand jury, pursuant to the Fifth Amendment, because Ring was a state death penalty case, and the Fifth Amendment’s grand jury requirement has not been applied to the states. Id. at 597 n. 4, 122 S.Ct. 2428 (“Ring does not contend that his indictment was constitutionally defective.”) (citing Apprendi v. New Jersey, 530 U.S. 466, 477, n. 3, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (noting that the Fourteenth Amendment has not been construed to include the Fifth Amendment right to presentment or indictment of a Grand Jury) (internal citation omitted)). Notwithstanding Ring’s Sixth Amendment based holding, a number of circuits have interpreted Ring, when read in conjunction with Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), to require that at least one statutory aggravating factor and the mens rea requirement be charged in the indictment, pursuant to the Fifth Amendment’s grand jury requirement, reasoning that mens rea and statutory aggravators, in a capital case, are the functional equivalents of elements of the offense. See United States v. Allen, 406 F.3d 940, 943 (8th Cir.2005) (en banc) (holding “the Fifth Amendment requires at least one statutory aggravating factor and the mens rea requirement to be found by the grand jury and charged in the indictment ... because that is what is required to elevate the available statutory maximum sentence from life imprisonment to death”); United States v. Robinson, 367 F.3d 278, 284 (5th Cir.2004) (“Ring’s Sixth Amendment holding" }, { "docid": "11839168", "title": "", "text": "167 L.Ed.2d 816 (2007); Purkey, 428 F.3d at 749-50, cert. denied, — U.S. —, 127 S.Ct. 433, 166 L.Ed.2d 307 (2006); United States v. Bourgeois, 423 F.3d 501, 507-08 (5th Cir.2005), cert. denied, 547 U.S. 1132, 126 S.Ct. 2020, 164 L.Ed.2d 786 (2006); United States v. Higgs, 353 F.3d 281, 298 (4th Cir.2003), cert. denied, 543 U.S. 999, 125 S.Ct. 627, 160 L.Ed.2d 456 (2004). Fell, relying on Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), Ring v. Arizona, and related Supreme Court precedents, urges us to reach a different conclusion. In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court emphasized that “[i]f a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt.” Ring, 536 U.S. at 602, 122 S.Ct. 2428 (citing Apprendi, 530 U.S. at 482-83, 120 S.Ct. 2348). Two years later, in Ring, the Supreme Court held that an aggravating factor rendering a defendant death-eligible “operate[s] as the functional equivalent of an element of a greater offense” and, therefore, must be found by a jury. Id. at 609, 122 S.Ct. 2428 (internal quotation marks and citation omitted). Although Ring said nothing regarding the Indictment Clause of the Fifth Amendment, some courts of appeals have interpreted the decision as applying with equal force at the indictment stage as at the penalty stage of a trial. Accordingly, several circuits, including our own, require the government to charge statutory aggravating factors under the FDPA in the indictment. See, e.g., Quinones, 313 F.3d at 53 n. 1 (noting that, pursuant to Ring v. Arizona, “statutory aggravating factors ... must now be alleged in the indictment and found by a jury in capital cases”); see also Bourgeois, 423 F.3d at 507; Brown, 441 F.3d at 1367 (collecting cases). Here, the district court noted that the government “implicitly conceded” that the Fifth Amendment requires that statutory aggravating factors be charged in the indictment when, following Ring," }, { "docid": "15638272", "title": "", "text": "applies with equal force in the context of a Fifth Amendment Indictment Clause challenge ... [and][a]s a result, the government is required to charge, by indictment, the statutory aggravating factors it intends to prove to render a defendant eligible for the death penalty, and its failure to do so in this case is constitutional error.”); United States v. Higgs, 353 F.3d 281, 299 (4th Cir.2003) (“So long as one statutory aggravating factor is alleged in the indictment and the petit jury finds that statutory aggravating factor to exist, the indictment is not defective as to the capital offense charged.”); (United States v. Quinones, 313 F.3d 49, 53 n. 1 (2d Cir.2002)) (noting that Ring now requires statutory aggravating factors be “alleged in the indictment and found by a jury in capital cases”). Although the Sixth Circuit has not directly commented on Ring’s application to the Fifth Amendment’s grand jury requirement, this Court finds persuasive the reasoning set forth by the Eighth, Fifth, Fourth, and Second Circuits, and holds that both the mens rea and at least one statutory aggravator found by the pet-it jury must have been charged in the indictment. The prosecution in the case sub judice has complied with Ring’s Fifth Amendment requirements. It charged both the mens rea requirements and all statutory aggravates to the grand jury, listing them in the Indictment under the heading “Special Findings.” Thus, Defendant does not, and indeed cannot, argue that his Fifth Amendment Rights have been violated. Instead, Defendant argues that in light of this grand jury requirement, the FDPA must be held unconstitutional because it requires only that the aggravating factors and mens rea requirement be charged in a Notice of Intent to Seek the Death Penalty, not in the indictment itself. See 18 U.S.C. § 3593(a). Defendant further argues that the only way to constitutionalize the statute would be for this Court to overstep its authority by rewriting the statute. Defendant’s arguments are without merit. See United States v. Williams, No. S100CR.1008, 2004 WL 2980027, at *11 (S.D.N.Y. Dec. 22, 2004) (“[Njothing in the FDPA must be ‘rewritten’ to" }, { "docid": "23707671", "title": "", "text": "or II of Chapter 13 (Drug Abuse Prevention and Control) of Title 21. 21 U.S.C. § 848(e)(1)(B). However, it is clear that Congress intended for § 848(e)(1)(B) to establish a substantive offense separate from any such predicate offense. United States v. NJB, 104 F.3d 630, 633 (4th Cir.1997); United States v. Villari'eal, 963 F.2d 725, 728 (5th Cir.1992). Therefore, we find no persuasive reason why a violation of § 848(e)(1)(B) cannot be charged independently of the defendant being charged with or convicted of a predicate offense. Finally, we note that although Barrett cites to the Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) in support of his arguments, that decision has no bearing on the issues he raises. In Ring, the Court held that an aggravating factor necessary for imposition of the death penalty has to be found by a jury and cannot be determined by a sentencing judge. 536 U.S. at 609, 122 S.Ct. 2428. To be sure, the circuit courts considering the issue have unanimously concluded that the holding in Ring applies with equal force in the context of a Fifth Amendment challenge to the lack of statutory aggravating factors in an indictment charging a death-eligible crime under the Federal Death Penalty Act (FDPA). See United States v. Brown, 441 F.3d 1330, 1367 (11th Cir.2006); United States v. Allen, 406 F.3d 940, 942-43 (8th Cir.2005) (en banc); United States v. Robinson, 367 F.3d 278, 284 (5th Cir.2004); United States v. Higgs, 353 F.3d 281, 297-98 (4th Cir.2003). Here, however, that requirement was clearly satisfied, and it is not otherwise apparent how Ring is relevant to Barrett’s assertion that it was necessary for Counts 1 and 2 of the superseding indictment to specifically allege the elements of the. underlying offenses identified therein. b) Multiplicity Barrett next contends that the indictment was multiplicitous. Aplt. Br. at 41. According to Barrett, “all counts [in the indictment] [we]re based on the same conduct, firearms and drugs, and for killing the same person.” Id. at 42. Because Barrett did not raise this issue below," } ]

[ { "docid": "2121250", "title": "", "text": "L.Ed. 552. This principle is well settled. Gollaher v. United States, 419 F.2d 520 (9th Cir. 1969), cert. denied, 396 U.S. 960, 90 S.Ct. 434, 24 L.Ed.2d 424; United States v. Elliott, 418 F.2d 219 (9th Cir. 1969); United States v. Bruton, 416 F.2d 310 (8th Cir. 1969), cert. denied, 397 U.S. 1014, 90 S.Ct. 1248, 25 L.Ed.2d 428; Quintero v. United States, 409 F.2d 839 (9th Cir. 1969); Bowman v. United States, 350 F.2d 913 (9th Cir. 1965), cert. denied, 383 U.S. 950, 86 S.Ct. 1209, 16 L.Ed.2d 212; Poole v. United States, 329 F.2d 720 (9th Cir. 1964); United States v. Goldfarb, 328 F.2d 280 (6th Cir. 1964), cert. denied, 377 U.S. 976, 84 S.Ct. 1883, 12 L.Ed.2d 746. Where the witness is not the party, the party may not claim the privilege nor take advantage of an error of the court in overruling it. Bowman v. United States, supra. Accord, Long v. United States, 124 U.S.App.D.C. 14, 360 F.2d 829 (1966), authored by Judge, now Chief Justice, Burger. The party, as contrasted to the witness, simply lacks standing. United States v. Ceniceros, 427 F.2d 685 (9th Cir. 1970); United States v. Elliott, supra; United States v. Bruton, supra; Lopez v. Burke, 413 F.2d 992 (7th Cir. 1969). See also Alderman v. United States, supra, and United States v. Galvez, 465 F.2d 681 (10th Cir. 1972). The self-incrimination provision of the Fifth Amendment is to “be accorded liberal construction in favor of the right it was intended to secure”. Hoffman v. United States, 341 U.S. 479 at 486, 71 S.Ct. 814, at 818, 95 L.Ed. 1118 (1951). A defendant has a vested interest only in his own Fifth Amendment rights. Poole v. United States, supra. There is no violation of the privilege when the information elicited is used not against the witness but against another. Lopez v. Burke, supra. The privilege belonged to Egan, not to Skolek. Egan did not undertake to test the validity of the court’s rulings by standing upon his claim of privilege and refusing to answer. It is for the trial court to say" } ]

[ { "docid": "23003608", "title": "", "text": "the discretion of the trial judge to permit counsel for the witness to invoke the privilege on his behalf, 8 Wigmore, supra, § 2270, the nature of the privilege is such that in the final analysis the controlling decision is that of the witness himself. In short, Ernest Frank Fowler possessed no right to have Pruitt, Arnold or Terry assert the privilege. Neither did defendant Frank Fowler’s attorney. United States v. Goldfarb, supra; Lopez v. Burke, 413 F.2d 992 (7th Cir. 1969); United States v. Skolek, 474 F.2d 582 (10th Cir. 1973). We recognize that it is not possible always to know in advance if the privilege will in fact be invoked when a given question is asked, and further whether, if invoked, the question is properly subject to the privilege. Since the government has the obligation to present such relevant testimony as the witness may possess, it must in turn have a reasonable opportunity to test whether that testimony will be forthcoming, and if not, whether it can be compelled. Nor do we go so far as to hold that in testing the privilege the government must do so out of the presence of the jury. Experience shows that apprehended difficulties with proof often evaporate when put to the actual test of the trial. There may be a constitutional privilege against testifying and at the same time be a powerful incentive to get on the stand and tell the truth. The alternatives for the witness are seldom easy. Bearing in mind all of the foregoing considerations, we are nevertheless unable to approve the conduct of the government in its questioning of the witnesses, particularly Pruitt Fowler. In short, it went too far and exceeded the reasonable bounds which might have been necessary to test the privilege. We need not decide whether the Confrontation Clause, as applied in Douglas v. Alabama, should extend to this form of interrogation. The extensive nature of the questioning, after determining that the witness would continue to invoke the privilege, was in any event an unfair trial tactic on the part of the prosecution. Thus," }, { "docid": "23003603", "title": "", "text": "the vehicles). Direct Sales, supra. L. C. Cook’s presence at a meeting of three of the leading co-conspirators when “stolen vehicles” were discussed, prior to his purchase, was a sufficient basis for a finding that he knew of the conspiracy and not simply that the truck he purchased was stolen. As to Bewley, testimony established that he knew far more than merely that his Volkswagen possessed a questionable pedigree. His conversation with Captain Higgins revealed that he appeared fully aware of the salient features of the conspiracy itself. We conclude that there was evidence from which the jury could find that all three of these defendants knew of the existence and purposes of the Bowling Green conspiracy at the time of their alleged involvement. They benefited from it and they contributed to its success. This is sufficient. III. ISSUES AFFECTING INDIVIDUAL DEFENDANTS A. Ernest Frank Fowler: Right of confrontation Appellant Ernest Frank Fowler claims that his Sixth Amendment right of confrontation was denied by the persistent and leading questions put by the government attorney to three witnesses, notwithstanding the assertion of their Fifth Amendment privilege against self-incrimination. In Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), an alleged accomplice of the defendant, one Loyd, invoked his Fifth Amendment privilege when called by the government. Under the guise of cross-examining a hostile witness, the prosecutor, over objection, read in the presence of the jury the accomplice’s purported confession which implicated the defendant on trial. Three law enforcement officers then identified the document as a confession which was signed by the accomplice. The result of this prosecutorial misconduct, held the Supreme Court, was to deprive the defendant of his Sixth Amendment right to confrontation: “ • . . effective confrontation of Loyd was possible only if Loyd affirmed the statement as his. However, Loyd did not do so, but relied on his privilege to refuse to answer. We need not decide whether Loyd properly invoked the privilege in light of his conviction. It is sufficient for the purposes of deciding petitioner’s claim under the Confrontation Clause that" }, { "docid": "23003605", "title": "", "text": "no suggestion is made that Loyd’s refusal to answer was procured by the petitioner, see Motes v. United States, supra, 178 U.S. [458], at 471 [20 S.Ct. 993, at 998, 44 L.Ed. 1150] on this record it appears that Loyd was acting entirely in his own interests in doing so.” Douglas v. Alabama, supra, at p. 420, 85 S.Ct. at p. 1077. The three witnesses involved here were Pruitt and Arnold Fowler, brothers of defendant Ernest Frank Fowler, and Terry Fowler, son of Pruitt Fowler and nephew of Frank. Their privilege against self-incrimination was in each case asserted not by them personally, but by the attorney for Ernest Frank Fowler who, when the witness was called to the stand, announced to the court that he represented the witness as well. The witness was thereupon declared a hostile witness, and the government attorney was permitted to pose leading questions as on cross-examination. In turn, upon request of Frank Fowler’s attorney, the court instructed the witness not to answer the question until the Fifth Amendment objection was made and ruled upon. Most of the challenged cross-examination involved Pruitt Fowler, who was called by the government four times. Arnold was called twice and Terry once. Generally the questions went to the witness’ knowledge of certain vehicles named in the overt acts of the indictment, their own activities regarding those vehicles, and Frank Fowler’s activities. Because of the invocation of the Fifth Amendment privilege, little testimony was actually elicited. A careful examination of the questions put to the witness confirms the defense claim that the factual assertions in the leading questions were indeed suggestive of Frank Fowler’s involvement, in the conspiracy. As such, they are not un like those questions which brought about reversal of the defendant’s conviction in United States v. King, 461 F.2d 53 (8th Cir. 1972). Several distinctions between the facts here and those in Douglas v. Alabama are apparent. In Douglas v. Alabama the full confession was read to the jury as the statement of the witness and the giving of the confession was confirmed by three other witnesses. Here," }, { "docid": "18978040", "title": "", "text": "further whether, if invoked, the question is properly subject to the privilege. Since the government has the obligation to present such relevant testimony as the witness may possess, it must in turn have a reasonable opportunity to test whether that testimony will be forthcoming, and if not, whether it can be compelled. Nor do we go so far as to hold that in testing the privilege the government must do so out of the presence of the jury. Experience shows that apprehended difficulties with proof often evaporate when put to the actual test of the trial. There may be a constitutional privilege against testifying and at the same time be a powerful incentive to get on the stand and tell the truth. The alternatives for the witness are seldom easy. The same might be observed with respect to Neal’s dilemma here. However, because Neal was in fact directly questioned by the judge and personally indicated his refusal, I am satisfied that there was sufficient compliance with our earlier remand to warrant an affirmation of the judgment of civil contempt. . Also present were the government attorney, defendant Marlon Johnson and his attorney, and defendant Bennie Johnson. For this proceeding the government had obtained a compulsion order since, in a Rule 15 deposition proceeding attempted two weeks earlier, Neal had indicated through his attorney that he refused to testify both on Fifth Amendment grounds and because of fear for his safety. The first deposition proceeding was discontinued so that the trial judge could sign the immunity order on the basis of Neal’s having invoked the Fifth Amendment. . Subsection (e) of Rule 15 prescribes the circumstances under which pretrial depositions may be used in trial; it provides, in part, that depositions may be used \"as substitute evidence if the witness is unavailable, as unavailable is defined in Rule 804(a) of the Federal Rules of Evidence.” Fed.R.Crim.P. 15(e). Unavailable for purposes of Federal Rules of Evidence 804(a) includes the circumstance of a witness who \"persists in refusing to testify concerning the subject matter of his statement despite an order of the court" }, { "docid": "7968988", "title": "", "text": "at 419-20, 85 S.Ct. 1074 (citing Namet and Maloney, supra). In applying the Namet rule to particular cases, the courts have analyzed various factors, including the prosecutor’s intent in calling the witness, the number of questions asked, their importance to the state’s case, whether the prosecutor draws any inference in his closing argument from the witness’ refusal to answer in his closing argument and whether the trial judge gives a curative instruction. Moynahan v. Manson, 419 F.Supp. 1139, 1149 (D.Conn.1976), aff’d, 559 F.2d 1204 (2d Cir.), cert. denied, 434 U.S. 939, 98 S.Ct. 430, 54 L.Ed.2d 229 (1977). We do not believe that the record before us can support a finding of prosecutorial misconduct based upon either of the Namet principles. It is undisputed that, prior to calling Hall to the stand, the state’s attorney did not know that Hall would assert his privilege against self-incrimination. “Since the government has the obligation to present such relevant testimony as the witness may possess, it must in turn have a reasonable opportunity to test whether that testimony will be forthcoming, and if not, whether it can be compelled.” United States v. Mayes, 512 F.2d 637, 649 (6th Cir.), cert. denied, 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670 (1975). Moreover, the state’s attorney apparently believed, as in Namet, that as a matter of law Hall had no Fifth Amendment privilege to invoke, reasoning that Hall’s plea of guilty to the conspiracy charge nullified his right against self-incrimination. The trial judge evidently shared this view and repeatedly directed Hall to respond and found him in contempt when he did not. Under the circumstances, we cannot find that the state’s attorney’s decision to press further and to ask Hall the final four questions concerning the actual perpetration of the robbery was a deliberate attempt by the state to capitalize on the witness’ refusal to testify. While the state’s attorney should not have withdrawn each of these questions without asking the court for its assistance in eliciting the desired testimony, we do not view this single lapse, when viewed in the context of a" }, { "docid": "7968989", "title": "", "text": "will be forthcoming, and if not, whether it can be compelled.” United States v. Mayes, 512 F.2d 637, 649 (6th Cir.), cert. denied, 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670 (1975). Moreover, the state’s attorney apparently believed, as in Namet, that as a matter of law Hall had no Fifth Amendment privilege to invoke, reasoning that Hall’s plea of guilty to the conspiracy charge nullified his right against self-incrimination. The trial judge evidently shared this view and repeatedly directed Hall to respond and found him in contempt when he did not. Under the circumstances, we cannot find that the state’s attorney’s decision to press further and to ask Hall the final four questions concerning the actual perpetration of the robbery was a deliberate attempt by the state to capitalize on the witness’ refusal to testify. While the state’s attorney should not have withdrawn each of these questions without asking the court for its assistance in eliciting the desired testimony, we do not view this single lapse, when viewed in the context of a two-week trial, as a calculated ruse aimed at inducing the jury to draw improper inferences against Rado. See Namet v. United States, supra, 373 U.S. at 188-89, 83 S.Ct. 278. Turning to the second prong of the Namet rule, we also cannot find that Hall’s refusal to answer added “critical weight” to the state’s case. This is not a case like Douglas v. Alabama, supra, United States v. Maloney, supra or Robbins v. Small, 371 F.2d 793 (1st Cir.), cert. denied, 386 U.S. 1033, 87 S.Ct. 1483, 18 L.Ed.2d 594 (1967) in which “a witness’ refusal to testify is the only source, or even the chief source, of the inference that the witness engaged in criminal activity with the defendant.” Namet v. United States, supra, 373 U.S. at 189, 83 S.Ct. at 1156. Both the testimony of Donnelly and Epprecht and the strong circumstantial evidence adduced at trial strongly implicated Rado in the planning of the robbery. Hall’s claims of privilege were merely “cumulative support” for inferences already established through witnesses who were subject to" }, { "docid": "22576462", "title": "", "text": "reason to know that these statements would be interpreted as a waiver of his fifth amendment privilege against self-incrimination. Accordingly, we hold that Rabinowitz, by testifying freely about the circumstances of the crime when he first took the stand, waived any fifth amendment privilege he might otherwise have been entitled to invoke to avoid testifying concerning Goodman’s murder. The state trial judge thus erred in allowing Rabinowitz to invoke the fifth amendment’s privilege against self-incrimination when he was recalled to the stand. Where, as here, a witness’ prior testimony results in a testimonial waiver of the witness’ fifth amendment privilege, the trial judge must, if the witness is subsequently recalled to the stand, direct the witness to testify, if necessary under penalty of contempt. Brown v. United States, 356 U.S. 148, 154-57, 78 S.Ct. 622, 626-628, 2 L.Ed.2d 589 (1958). If the witness thereafter continues to refuse to testify, and if the refusal precludes the defendant from testing the truth of the witness’ prior testimony, the trial judge must strike the prior testimony. United States v. Cardillo, 316 F.2d 606, 611 (2d Cir.), cert. denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963). The failure of the trial judge to take such corrective action deprives the defendant of his sixth amendment right of confrontation. Dunbar v. Harris, supra, 612 F.2d at 692-93. Here, the trial judge did not direct Rabinowitz, upon being recalled to the stand, to answer the questions posed by Klein’s trial counsel; nor did he threaten Rabinowitz with being held in contempt once he refused to answer those questions. Instead, the trial judge actively encouraged Rabinowitz not to answer the questions put to him by Klein’s trial counsel. While Rabinowitz’s refusal to testify upon being recalled to the stand plainly deprived Klein of an opportunity to test the truth of Rabinowitz’s prior testimony, the trial judge nevertheless failed to strike Rabinowitz’s prior testimony. At oral argument of this appeal, counsel for the State frankly stated: “It was incorrect [for the state trial judge] ... to allow the privilege, or, in the event he did allow" }, { "docid": "23003612", "title": "", "text": "do so. The unfairness which amounts to a denial of the right of confrontation is the frustration of the accused’s right to face his accuser and challenge the truth of the accusation. Douglas v. Alabama, supra. The unfairness disappears when the accused deliberately brings about that denial in furtherance of his own interests. It is apparent to us that here the conduct of the defendant’s own counsel, in which we must assume defendant concurred, was directed not to the protection of the witness, but rather to the protection of the defendant himself. Faced with the almost certain knowledge that Pruitt Fowler was about to testify against his own brother, counsel for Ernest Frank Fowler concluded, no doubt with good reason, that the best interests of the defendant lay in avoiding the impact of the brother’s testimony by invoking the Fifth Amendment privilege on his behalf. Thus, while there was indeed a risk to his client of creating in the jury’s mind an association between his client, the defendant, and his purported client, the witness and brother, it was no worse a risk than the potential prejudice which would come from the actual testimony of the brother on the stand. The record convinces us that the refusal of each of the three witnesses to answer was, in fact, “procured” by the defendant through his own counsel. Douglas v. Alabama, supra, 380 U.S. at 420, 85 S.Ct. 1074. He cannot now be heard to complain that he was denied the right of cross-examination and confrontation when he himself was the instrument of the denial. B. L. C. Cook: Hearsay to establish conspiracy Defendant L. C. Cook contends that hearsay evidence was erroneously admitted to connect him with the conspiracy and that his conviction should, therefore, be reversed. He asserts that a prima facie case of the existence of the conspiracy and his connection with it must be established independently of hearsay testimony admitted under the co-conspirator exception to the hearsay rule, relying upon Glover v. United States, 306 F.2d 594 (10th Cir. 1962). He claims that such independent evidence was not presented," }, { "docid": "7968987", "title": "", "text": "prosecutorial misconduct. Rado contends that the prosecutor’s conduct throughout the course of the examination, but particularly at its conclusion, denied Rado’s right to due process of law. The leading case in this area is Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963), in which the Supreme Court, relying heavily upon Judge Learned Hand’s decision in United States v. Maloney, 262 F.2d 535 (2d Cir. 1959), articulated two principles on which a witness’ invocation of his Fifth Amendment privilege may constitute error: 1. “prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege”; and 2. when “in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a forum not subject to cross-examination . . .” 373 U.S. at 186-87, 83 S.Ct. at 1155. In Douglas v. Alabama, supra, these principles were given constitutional significance and made applicable to the states. See 380 U.S. at 419-20, 85 S.Ct. 1074 (citing Namet and Maloney, supra). In applying the Namet rule to particular cases, the courts have analyzed various factors, including the prosecutor’s intent in calling the witness, the number of questions asked, their importance to the state’s case, whether the prosecutor draws any inference in his closing argument from the witness’ refusal to answer in his closing argument and whether the trial judge gives a curative instruction. Moynahan v. Manson, 419 F.Supp. 1139, 1149 (D.Conn.1976), aff’d, 559 F.2d 1204 (2d Cir.), cert. denied, 434 U.S. 939, 98 S.Ct. 430, 54 L.Ed.2d 229 (1977). We do not believe that the record before us can support a finding of prosecutorial misconduct based upon either of the Namet principles. It is undisputed that, prior to calling Hall to the stand, the state’s attorney did not know that Hall would assert his privilege against self-incrimination. “Since the government has the obligation to present such relevant testimony as the witness may possess, it must in turn have a reasonable opportunity to test whether that testimony" }, { "docid": "23003604", "title": "", "text": "three witnesses, notwithstanding the assertion of their Fifth Amendment privilege against self-incrimination. In Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), an alleged accomplice of the defendant, one Loyd, invoked his Fifth Amendment privilege when called by the government. Under the guise of cross-examining a hostile witness, the prosecutor, over objection, read in the presence of the jury the accomplice’s purported confession which implicated the defendant on trial. Three law enforcement officers then identified the document as a confession which was signed by the accomplice. The result of this prosecutorial misconduct, held the Supreme Court, was to deprive the defendant of his Sixth Amendment right to confrontation: “ • . . effective confrontation of Loyd was possible only if Loyd affirmed the statement as his. However, Loyd did not do so, but relied on his privilege to refuse to answer. We need not decide whether Loyd properly invoked the privilege in light of his conviction. It is sufficient for the purposes of deciding petitioner’s claim under the Confrontation Clause that no suggestion is made that Loyd’s refusal to answer was procured by the petitioner, see Motes v. United States, supra, 178 U.S. [458], at 471 [20 S.Ct. 993, at 998, 44 L.Ed. 1150] on this record it appears that Loyd was acting entirely in his own interests in doing so.” Douglas v. Alabama, supra, at p. 420, 85 S.Ct. at p. 1077. The three witnesses involved here were Pruitt and Arnold Fowler, brothers of defendant Ernest Frank Fowler, and Terry Fowler, son of Pruitt Fowler and nephew of Frank. Their privilege against self-incrimination was in each case asserted not by them personally, but by the attorney for Ernest Frank Fowler who, when the witness was called to the stand, announced to the court that he represented the witness as well. The witness was thereupon declared a hostile witness, and the government attorney was permitted to pose leading questions as on cross-examination. In turn, upon request of Frank Fowler’s attorney, the court instructed the witness not to answer the question until the Fifth Amendment objection was" }, { "docid": "23003609", "title": "", "text": "so far as to hold that in testing the privilege the government must do so out of the presence of the jury. Experience shows that apprehended difficulties with proof often evaporate when put to the actual test of the trial. There may be a constitutional privilege against testifying and at the same time be a powerful incentive to get on the stand and tell the truth. The alternatives for the witness are seldom easy. Bearing in mind all of the foregoing considerations, we are nevertheless unable to approve the conduct of the government in its questioning of the witnesses, particularly Pruitt Fowler. In short, it went too far and exceeded the reasonable bounds which might have been necessary to test the privilege. We need not decide whether the Confrontation Clause, as applied in Douglas v. Alabama, should extend to this form of interrogation. The extensive nature of the questioning, after determining that the witness would continue to invoke the privilege, was in any event an unfair trial tactic on the part of the prosecution. Thus, we would seriously consider reversal of Frank Fowler’s conviction, were it not that the entire circumstance appears to have been the contrivance of the defendant himself. When Pruitt Fowler was first called to . the stand, Mr. Scott, the attorney for defendant Frank Fowler, addressed the court: “Your honor, on behalf of the witness Pruitt Fowler, I am respectfully instructing the witness Pruitt not to answer any questions on the basis of his constitutional right to remain silent.” Thereafter, Scott closely guarded the witness and completely frustrated the government’s efforts to question him. Nowhere does it appear that Pruitt Fowler himself sought personally to invoke the privilege or even wanted to. On the contrary, when allowed the opportunity to answer questions held not subject to the privilege, Pruitt acknowledged that he had earlier told the government agents that he didn’t want an attorney, that he wanted to answer questions, and that when he arrived at the courthouse that morning from Arkansas that he had fully expected to testify for the prosecution. It thus appears upon" }, { "docid": "23003607", "title": "", "text": "of course, no statement as such was read, and any injury must come from the inference that “resort to privilege in each instance is a clear confession of crime.” 8 Wigmore, Evidence, § 2272 at 426 (McNaughton rev. 1961). Further, the trial judge repeatedly admonished the jury not to consider the government’s questions as having “any evidentiary value whatsoever”. Finally, there is upon the record here, at least some merit in the government’s assertion that invocation of the privilege came as a surprise in view of the earlier disclosed willingness of the witnesses to testify. The Fifth Amendment privilege against self-incrimination is a privilege personal to the witness. United States v. Goldfarb, 328 F.2d 280 (6th Cir. 1964). As such, it is not the property either of his attorney or of the defendant on trial. 8 Wigmore, supra, § 2270; Goldfarb, supra. While the witness is entitled to the advice of counsel before determining whether he should invoke the privilege, United States v. Compton, 365 F.2d 1 (6th Cir. 1966), and while it is within the discretion of the trial judge to permit counsel for the witness to invoke the privilege on his behalf, 8 Wigmore, supra, § 2270, the nature of the privilege is such that in the final analysis the controlling decision is that of the witness himself. In short, Ernest Frank Fowler possessed no right to have Pruitt, Arnold or Terry assert the privilege. Neither did defendant Frank Fowler’s attorney. United States v. Goldfarb, supra; Lopez v. Burke, 413 F.2d 992 (7th Cir. 1969); United States v. Skolek, 474 F.2d 582 (10th Cir. 1973). We recognize that it is not possible always to know in advance if the privilege will in fact be invoked when a given question is asked, and further whether, if invoked, the question is properly subject to the privilege. Since the government has the obligation to present such relevant testimony as the witness may possess, it must in turn have a reasonable opportunity to test whether that testimony will be forthcoming, and if not, whether it can be compelled. Nor do we go" }, { "docid": "23003106", "title": "", "text": "to a motion to strike. The ultimate inquiry is whether the defendant has been deprived of his right to test the truth of the direct testimony. United States v. Cardillo, 316 F.2d 606, 611 (2d Cir.), cert. denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963). If he has, so much of the direct testimony as cannot be subjected to sufficient inquiry must be struck. The distinction is generally drawn between invoking the privilege as to “collateral matters,” not requiring the striking of direct testimony, and invoking it as to “direct” matters. United States v. Cardillo, supra, 316 F.2d at 613. See also Coil v. United States, 343 F.2d 573 (8th Cir.), cert. denied, 382 U.S. 821, 86 S.Ct. 48, 15 L.Ed.2d 67 (1966); Smith v. United States, 331 F.2d 265 (8th Cir.), cert. denied, 379 U.S. 824, 85 S.Ct. 49, 13 L.Ed.2d 34 (1964); United States v. Collier, 362 F.2d 135 (7th Cir., 1966), cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439 (1967). But the line between “direct” and “collateral” is not clear, and the question in each case must finally be whether defendant’s inability to make the inquiry created a substantial danger of prejudice by depriving him of the ability to test the truth of the witness’s direct testimony. Here the first assertion of the privilege involved a matter not covered on direct examination; no inquiry had been made on direct into Newbold’s activities after the arrest of appellants. There was, therefore, no waiver of the privilege and it was properly invoked by Newbold. In view of the collateral nature of the inquiry thereby foreclosed, it was not error to permit the direct testimony to go to the jury. The second invocation of the privilege presents a more difficult matter. Here again we feel that the privilege was properly invoked; while the making of the initial payment and the withdrawal from the account were covered on direct examination, this cannot be construed as a waiver of the right to decline to reveal potentially incriminating information as to the source of the money in" }, { "docid": "23003610", "title": "", "text": "we would seriously consider reversal of Frank Fowler’s conviction, were it not that the entire circumstance appears to have been the contrivance of the defendant himself. When Pruitt Fowler was first called to . the stand, Mr. Scott, the attorney for defendant Frank Fowler, addressed the court: “Your honor, on behalf of the witness Pruitt Fowler, I am respectfully instructing the witness Pruitt not to answer any questions on the basis of his constitutional right to remain silent.” Thereafter, Scott closely guarded the witness and completely frustrated the government’s efforts to question him. Nowhere does it appear that Pruitt Fowler himself sought personally to invoke the privilege or even wanted to. On the contrary, when allowed the opportunity to answer questions held not subject to the privilege, Pruitt acknowledged that he had earlier told the government agents that he didn’t want an attorney, that he wanted to answer questions, and that when he arrived at the courthouse that morning from Arkansas that he had fully expected to testify for the prosecution. It thus appears upon the record here that Pruitt Fowler’s refusal to testify was directly procured by the defendant, acting through his counsel, and the record is far from satisfying that the witness was “acting entirely in his own interests in doing so”, Douglas v. Alabama, supra. It was argued before the trial bench that Attorney Scott, in asserting the privilege on behalf of the witness, was doing so solely as counsel for the witness and that consequently his conduct is not chargeable to the defendant. The unseemly conduct of Mr. Scott in purporting to “wear two hats”, (thus enabling him to appear to abandon the rights of the defendant he was bound to defend in favor of the rights of the witness) does not commend itself to us, nor should it have, we think, to the trial court. Nevertheless, Scott succeeded in protecting his client, the defendant, from the impact of the potential testimony of his client, the witness, and beyond that, succeeded in obtaining the blessing of a court instruction to the jury that he might properly" }, { "docid": "23003611", "title": "", "text": "the record here that Pruitt Fowler’s refusal to testify was directly procured by the defendant, acting through his counsel, and the record is far from satisfying that the witness was “acting entirely in his own interests in doing so”, Douglas v. Alabama, supra. It was argued before the trial bench that Attorney Scott, in asserting the privilege on behalf of the witness, was doing so solely as counsel for the witness and that consequently his conduct is not chargeable to the defendant. The unseemly conduct of Mr. Scott in purporting to “wear two hats”, (thus enabling him to appear to abandon the rights of the defendant he was bound to defend in favor of the rights of the witness) does not commend itself to us, nor should it have, we think, to the trial court. Nevertheless, Scott succeeded in protecting his client, the defendant, from the impact of the potential testimony of his client, the witness, and beyond that, succeeded in obtaining the blessing of a court instruction to the jury that he might properly do so. The unfairness which amounts to a denial of the right of confrontation is the frustration of the accused’s right to face his accuser and challenge the truth of the accusation. Douglas v. Alabama, supra. The unfairness disappears when the accused deliberately brings about that denial in furtherance of his own interests. It is apparent to us that here the conduct of the defendant’s own counsel, in which we must assume defendant concurred, was directed not to the protection of the witness, but rather to the protection of the defendant himself. Faced with the almost certain knowledge that Pruitt Fowler was about to testify against his own brother, counsel for Ernest Frank Fowler concluded, no doubt with good reason, that the best interests of the defendant lay in avoiding the impact of the brother’s testimony by invoking the Fifth Amendment privilege on his behalf. Thus, while there was indeed a risk to his client of creating in the jury’s mind an association between his client, the defendant, and his purported client, the witness and" }, { "docid": "6842351", "title": "", "text": "As to the Nova, its ownership, as distinguished from the use made of it, is only peripherally relevant, if at all. We conclude that the curtailed cross-examination related to merely collateral matters. As the Second Circuit said in United States v. Cardillo, 2 Cir., 1963, 316 F.2d 606, 611: Where the privilege has been invoked as to purely collateral matters, there is little danger of prejudice to the defendant and, therefore, the witness’s testimony may be used against him. United States v. Norman, 9 Cir., 1968, 402 F.2d 73, is closely in point. There, the principal witness against a defendant charged with selling narcotics invoked his privilege against self-incrimination when asked whether he had made other purchases of narcotics, whether he had access to sources of heroin other than the defendant, or had had possession of heroin other than that bought from the defendant. The trial judge sustained the claim of privilege. Trial counsel did not claim that it was error to do so, and did not move to strike the testimony of the witness. We said that counsel had two purposes in asking the questions. One was to undermine the witness’ credibility. As to this, we cited and followed Cardillo, supra (402 F.2d at 77). The second purpose was to show a source of the narcotics other than the defendant. In response, we pointed out that the witness had been searched and then watched when he went to the defendant to make a buy, so that the answers “would not have undermined the government’s case.” (id.). We concluded that there was no “plain error.” (F.R. Crim.P. 52(b)). Here, counsel did move to strike, so that we are concerned with “error,” and not “plain error.” There is, however, another rule dealing with error, Rule 52(a). We doubt that there was error at all. But if there was, we find it harmless, in that it did “not affect substantial rights” of Williams in this particular case. Answers to the questions “would not have undermined the government’s case.” Moreover, if it can be said that the error, if any, is of constitutional" }, { "docid": "18978039", "title": "", "text": "of counsel, even if that advice might be only to point out to him the alternatives he faced. I do say, however, that he had the legal obligation to answer questions put to him. In addition, jail for contempt was not an alternative right available to Neal any more than a driver has a “right” to violate a traffic law by paying the prescribed fine in advance. In short, I think the government prosecutor should have proceeded to interrogate Neal on those matters concerning which it claimed his testimony was sought. It is entirely possible that if questioning had been carefully constructed to produce answers and not a charge of contempt, it could have allayed Neal’s fears or at least so piqued his curiosity that he would have responded notwithstanding his earlier and contrary resolve not to testify. As the undersigned observed in Mayes, 512 F.2d at 649: We recognize that it is not possible always to know in advance if the privilege will in fact be invoked when a given question is asked, and further whether, if invoked, the question is properly subject to the privilege. Since the government has the obligation to present such relevant testimony as the witness may possess, it must in turn have a reasonable opportunity to test whether that testimony will be forthcoming, and if not, whether it can be compelled. Nor do we go so far as to hold that in testing the privilege the government must do so out of the presence of the jury. Experience shows that apprehended difficulties with proof often evaporate when put to the actual test of the trial. There may be a constitutional privilege against testifying and at the same time be a powerful incentive to get on the stand and tell the truth. The alternatives for the witness are seldom easy. The same might be observed with respect to Neal’s dilemma here. However, because Neal was in fact directly questioned by the judge and personally indicated his refusal, I am satisfied that there was sufficient compliance with our earlier remand to warrant an affirmation of the" }, { "docid": "23003606", "title": "", "text": "made and ruled upon. Most of the challenged cross-examination involved Pruitt Fowler, who was called by the government four times. Arnold was called twice and Terry once. Generally the questions went to the witness’ knowledge of certain vehicles named in the overt acts of the indictment, their own activities regarding those vehicles, and Frank Fowler’s activities. Because of the invocation of the Fifth Amendment privilege, little testimony was actually elicited. A careful examination of the questions put to the witness confirms the defense claim that the factual assertions in the leading questions were indeed suggestive of Frank Fowler’s involvement, in the conspiracy. As such, they are not un like those questions which brought about reversal of the defendant’s conviction in United States v. King, 461 F.2d 53 (8th Cir. 1972). Several distinctions between the facts here and those in Douglas v. Alabama are apparent. In Douglas v. Alabama the full confession was read to the jury as the statement of the witness and the giving of the confession was confirmed by three other witnesses. Here, of course, no statement as such was read, and any injury must come from the inference that “resort to privilege in each instance is a clear confession of crime.” 8 Wigmore, Evidence, § 2272 at 426 (McNaughton rev. 1961). Further, the trial judge repeatedly admonished the jury not to consider the government’s questions as having “any evidentiary value whatsoever”. Finally, there is upon the record here, at least some merit in the government’s assertion that invocation of the privilege came as a surprise in view of the earlier disclosed willingness of the witnesses to testify. The Fifth Amendment privilege against self-incrimination is a privilege personal to the witness. United States v. Goldfarb, 328 F.2d 280 (6th Cir. 1964). As such, it is not the property either of his attorney or of the defendant on trial. 8 Wigmore, supra, § 2270; Goldfarb, supra. While the witness is entitled to the advice of counsel before determining whether he should invoke the privilege, United States v. Compton, 365 F.2d 1 (6th Cir. 1966), and while it is within" }, { "docid": "16770654", "title": "", "text": "counsel before taking the stand. Sawyer then contacted an attorney, who arrived at the proceedings shortly thereafter. In order to inform Sawyer and his counsel of the issues surrounding his prospective testimony, the district court convened an on-the-record session in camera. At that time, the prosecutor explained to Sawyer that he was the subject of an ongoing investigation concerning his relationship. with Crow. In particular, Sawyer was informed that the government had gathered evidence indicating that he had submitted false documents in support of Crow’s petition for clemency, had committed bank fraud, and had possessed controlled substances. After conferring with counsel, Sawyer decided to assert his Fifth Amendment privilege if compelled to take the stand. When the court then permitted Mack to call Sawyer as a witness, Sawyer proceeded to answer questions regarding his name and place of residence, and thereafter responded to each question by invoking his Fifth Amendment privilege. When Sawyer stepped down, the district court instructed the members of the jury that they “may not to infer anything, either positive or negative, on behalf of the government or on behalf of the defendant.” Mack argues on appeal that the district court erred in permitting Sawyer to invoke his Fifth Amendment privilege. A defendant’s right to compel a witness to testify must yield to that witness’s assertion of his or her Fifth Amendment privilege against self-incrimination when that assertion is grounded upon a reasonable fear of prosecution. United States v. Gaitan-Acevedo, 148 F.3d 577, 588 (6th Cir.1998). The district court is necessarily accorded broad discretion in determining whether an invoked Fifth Amendment privilege is meritorious. Id. Because we review for an abuse of discretion, the district court’s ruling will be affirmed unless we are left with a “definite and firm conviction that the trial court committed a clear error of judgment.” Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir.1989). In the present matter, Sawyer learned before testifying that he was a subject in an ongoing investigation that implicated his relationship with Crow. Moreover, he learne'd that the government had gathered incriminating evidence against him. Under" }, { "docid": "23003107", "title": "", "text": "“collateral” is not clear, and the question in each case must finally be whether defendant’s inability to make the inquiry created a substantial danger of prejudice by depriving him of the ability to test the truth of the witness’s direct testimony. Here the first assertion of the privilege involved a matter not covered on direct examination; no inquiry had been made on direct into Newbold’s activities after the arrest of appellants. There was, therefore, no waiver of the privilege and it was properly invoked by Newbold. In view of the collateral nature of the inquiry thereby foreclosed, it was not error to permit the direct testimony to go to the jury. The second invocation of the privilege presents a more difficult matter. Here again we feel that the privilege was properly invoked; while the making of the initial payment and the withdrawal from the account were covered on direct examination, this cannot be construed as a waiver of the right to decline to reveal potentially incriminating information as to the source of the money in the account. Appellants now urge, however, that if permitted to pursue the inquiry they would have been able to demonstrate that Newbold did not in fact have the money to make the payments he testified to having made; thus it is urged that the jury was improperly permitted to consider New-bold’s direct testimony as to the payments. This objective of the questions propounded on cross was not revealed to the district judge, however, and counsel did not pause long enough in his cross examination to request that the court rule on the witness’s refusal to answer. Nor was a motion to strike the direct testimony made. Since the district court was neither apprised of the purpose of the inquiry nor asked to rule on the matter or to strike the direct testimony, the situation cannot require reversal, United States v. Sanchez, 361 F.2d 824 (2nd Cir., 1966), Policyholder’s National Life Ins. Co. v. Harding, 147 F.2d 851 (8th Cir., 1945), Traylor v. Pickering, 324 F.2d 655 (5th Cir., 1963), unless it amounts to “plain error”" } ]

[ { "docid": "15341677", "title": "", "text": "his activities. There is no evidence to indicate whether the grand jury proposed to inquire into all three of Knau-ber’s “facets,” only one of them, or whether, having heard him, the grand jurors decided to look into some other matter. An FBI agent, even one sworn in as an “agent” of the grand jury, neither controls, directs nor participates in grand jury decisions. His statements about his investigation merely attest to his own purposes and actions, not to the nature, scope or extent of the grand jury’s inquiry. The Fifth Amendment guarantee, “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury” was designed “to provide a fair method for instituting criminal proceedings,” Costello v. United States, 1956, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397, 402. “[I]n this country as in England of old the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.” Ibid. See also United States v. Calandra, 1974, 414 U.S. 338, 342-46, 94 S.Ct. 613, 617-19, 38 L.Ed.2d 561, 568-570. The grand jury performs its investigative function under the direction but not under the control of the prosecutor. Congressional Research Service, The Constitution of the United States of America 1090 (1973). Historically a bulwark of the citizen, the grand jury must not be perverted into a rubber stamp for prosecutors or investigatory agencies. The constitutional purpose of the grand jury is surely thwarted if we assume that the direction or scope of its inquiries is determined by the investigators who bring evidence to its attention. The trial court was justified in believing that Knauber truthfully reported what he told the grand jury. Even if we accept the government’s contention that a sworn “agent” of the grand jury has a special role in grand jury investigation, a proposition about which we express no opinion, the agent does not determine the actual scope of the investigation." } ]

[ { "docid": "10940408", "title": "", "text": "upon the agents involved. Nonetheless, various government investigative agents described themselves as “grand jury agents” during the course of interviews of potential grand jury witnesses. In these instances they identified themselves with credentials from the IRS but then hastened to explain in Mikado fashion that they were not there on behalf of the agency but on behalf of the grand jury and the U.S. Attorney. At least one agent took it upon himself to grant some sort of informal immunity to a witness by telling her that since she was not a target that her “fifth amendment rights are not involved.” (Interview of Marge Brock by Robert Stellmacher p. 2) I will discuss the subject of informal immunity in greater detail below. The most important function of a grand jury is to stand between the prosecuting authorities and the suspect as an unbiased evaluator of evidence. Dionisio, supra, 410 U.S. at 16, 93 S.Ct. at 772. That function cannot be maintained or understood by society when citizens are confronted by law enforcement agents who claim to be alter egos of the grand jury. There is a world of difference in a society of limited government between being subpoenaed to testify in confidence before a grand jury of one’s fellow citizens and being interrogated in one’s home by a law enforcement officer who claims not to be a law enforcement officer at the moment. A grand jury that has become identified in the eyes of lay witnesses before it with law enforcement agencies is not functioning independently of the prosecution. Such identification can only undermine public confidence that the grand jury is performing its constitutional function to check the power of the government. It is well within a district court’s supervisory powers to insure that the grand jury’s integrity as an independent body is not destroyed in the public eye. United States v. Pino, 708 F.2d at 531. Indeed, one would think that the entire issue had been finally resolved at Runnymede in 1215 A.D. The government cites United States v. International Paper Co., 457 F.Supp. 571 (S.D.Tex.1978) in support of" }, { "docid": "15674241", "title": "", "text": "had been convicted for acts giving rise to the prosecution of Pinto. At the prosecutor’s urging, the court assigned counsel for Mecolta to safeguard his Fifth Amendment rights. Although the prosecutor had told Mecolta’s attorney that any additional criminal conduct revealed during Me-colta’s testimony not covered by his conviction would lead to a new indictment, the prosecutor, without notifying Mecolta’s attorney, had her case agents interview Mecolta to determine what his trial testimony might be. Rejecting the prosecutor’s argument that Mecolta was “only a witness,” the Court noted that, in light of the prosecutor’s warning to Mecolta’s attorney, “[Mecolta] was also a potential defendant who was likely to reveal information that might compromise his fifth amendment rights.” Id. at 935 (emphasis added). However, this Court went on to hold that “we need not, and do not, find a violation of DR 7-104(A)(l) in this case.” Id. It was against this backdrop of precedent that, in Hammad, 858 F.2d at 834, this Court considered whether a prosecutor had violated DR 7-104(A)(l) and, if so, whether suppression of the resulting statements was the appropriate remedy. In Hammad, a federal prosecutor, through an IRS agent, provided a government informant with a sham grand jury subpoena. The informant showed the subpoena to the target of the government investigation, who was represented by counsel in an unrelated, ongoing civil investigation into medicaid fraud, and induced several conversations about the underlying crimes, all of which were recorded. The resulting indictment was based largely on the recorded conversations. Reversing the trial court’s suppression of the recordings, this Court nevertheless found a violation of DR 7- 104(A)(1). Writing for the Court, Judge Kaufman rejected the government’s contention that the Rule was inapplicable to criminal investigations, and found unpersuasive an interpretation that would link the Rule’s applicability to the time of indictment. The use of a sham grand jury subpoena to elicit statements from a represented defendant prior to indictment was found not to fall within DR 7-104(A)(l)’s “authorized by law” exception: In the present case, the prosecutor issued a subpoena for the informant, not to secure his attendance" }, { "docid": "22754746", "title": "", "text": "by the Court of Appeals, we reach the same conclusion and affirm its decision reversing the order of dismissal. We review the record to set forth the basis of our agreement with the Court of Appeals that prejudice has not been established. The District Court found that the Government had violated Federal Rule of Criminal Procedure 6(e) by: (1) disclosing grand jury materials to Internal Revenue Service employees having civil tax enforcement responsibilities; (2) failing to give the court prompt notice of such disclosures; (3) disclosing to potential witnesses the names of targets of the investigation; and (4) instructing two gránd jury witnesses, who had represented some of the defendants in a separate investiga tion of the same tax shelters, that they were not to reveal the substance of their testimony or that they had testified before the grand jury. The court also found that the Government had violated Federal Rule of Criminal Procedure 6(d) in allowing joint appearances by IRS agents before the grand jury for the purpose of reading transcripts to the jurors. The District Court further concluded that one of the prosecutors improperly argued with an expert witness during a recess of the grand jury after the witness gave testimony adverse to the Government. It also held that the Government had violated the witness immunity statute, 18 U. S. C. §§6002, 6003, by the use of “pocket immunity” (immunity granted on representation of the prosecutor rather than by order of a judge), and that the Government caused IRS agents to mischaracterize testimony given in prior proceedings. Furthermore, the District Court found that the Government violated the Fifth Amendment by calling a number of witnesses for the sole purpose of having them assert their privilege against self-incrimination and that it had violated the Sixth Amendment by conducting postindictment interviews of several high-level employees of The Bank of Nova Scotia. Finally, the court concluded that the Government had caused IRS agents to be sworn as agents of the grand jury, thereby elevating their credibility. As we have noted, no constitutional error occurred during the grand jury proceedings. The Court" }, { "docid": "19983890", "title": "", "text": "ultimately held in contempt and incarcerated, a result affirmed by the Second Circuit. In re Cueto, 554 F.2d 14 (2d Cir. 1977). . See n.7, supra. . The purpose of the amendment is stated in the Senate Report to P.L. 95-78, 95th Cong., 1st Sess. (1977), at 2 U.S.Code Cong. & Admin. News p. 530: “Attorneys for the Government in the performance of their duties with a grand jury must possess the authority to utilize the services of other government employees. Federal crimes are ‘investigated’ by the FBI, the IRS, or by Treasury agents and not by government prosecutors or the citizens who sit on grand juries. Federal agents gather and present information relating to criminal behavior to prosecutors who analyze and evaluate it and present it to grand juries. Often the prosecutors need the assistance of the agents in evaluating evidence. Also, if further investigation is required during or after grand jury proceedings, or even during the course of criminal trials, the Federal agents must do it. There is no reason for a barrier of secrecy to exist between the facets of the criminal justice system upon which we all depend to enforce the criminal laws. “The parameters of the authority of an attorney for the government to disclose grand jury information in the course of performing his own duties is not defined by Rule 6. However, a commonsense interpretation prevails, permitting ‘Representatives of other government agencies actively assisting United States attorneys in a grand jury investigation . . . access to grand jury material in the performance of their duties.’ Yet projected against this current practice, and the weight of case law, is the anomalous language of Rule 6(e) itself, which, in its present state of uncertainty, is spawning some judicial decisions highly restrictive of the use of government experts that require the government to ‘show the necessity (to the Court) for each particular person’s aid rather than showing merely a general necessity for assistance, expert or otherwise’ and that make Rule 6(e) orders subject to interlocutory appeal. “In this state of uncertainty, the Committee believes it is" }, { "docid": "21655792", "title": "", "text": "“intimately associated with the judicial phase of the criminal process.” 424 U.S. at 430, 96 S.Ct. at 995. In arguing that Brown’s conduct is not protected by absolute immunity, the plaintiffs rely principally on Briggs v. Goodwin, 569 F.2d 10 (D.C.Cir.1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978). In Briggs, a federal prosecutor participating in a grand jury investigation served subpoenas on several witnesses who were members of a protest group suspected of violating federal anti-riot laws. The witnesses, who feared infiltration into their group by FBI agents, sought disclosure by the government of the identity of any informants among their ranks. In response, the district court placed the prosecutor on the witness stand and asked him if any of the subpoened witnesses were in reality government employees. The prosecutor testified under oath that there were no informants among the witnesses. The prosecutor’s testimony was false, and his alleged perjury formed the basis of a Bivens action against him. The District of Columbia Circuit held that the prosecutor was not immunized by Imbler, principally because the prosecutor’s conduct could not be characterized as advocacy and because the grand jury proceedings were part of an ongoing investigation to determine if any federal crimes had been committed. The grand jury had not focused on specific individuals and was playing a broader investigative role than the typical grand jury asked simply to true bill or no bill a specific suspect. From Briggs, the plaintiffs argue that the fact that Brown’s alleged misconduct occurred before a grand jury does not automatically supply the intimate connection with the judicial process upon which Imbler immunity depends. We agree. In fact, to determine whether Imbler immunity applies, we have always conducted a functional analysis of a prosecutor’s activities. See, e.g., Marrero v. City of Hialeah, 625 F.2d at 505 (“our inquiry centers on the nature of the official behavior challenged and not the status or title of the officer”). We conclude, however, that, in presenting evidence to a grand jury convened to consider whether to indict the police officer who shot Morrison," }, { "docid": "13825499", "title": "", "text": "1977 amendments to Rule 6(e) permitting disclosure to “government personnel” to indicate that the term is limited to permanent civil service employees of the United States. Rather, this exception to the rule of grand jury secrecy was adopted to override decisions “ ‘highly restrictive of the use of government experts’ ” in grand jury investigations. In re Gruberg, 453 F.Supp. 1225, 1233-34 n. 11 (S.D.N.Y.1978) (quoting S.Rep. No. 354, 95th Cong., 1st Sess. 7 (1977), reprinted in U.S.Code Cong. & Ad. News 527, 530). Accordingly, one court within this circuit has noted that the government personnel exception is not limited to federal employees, holding that grand jury transcripts could be disclosed to municipal officials assisting a grand jury investigation. In re 1979 Grand Jury Proceedings, 479 F.Supp. 93, 95-96 (E.D.N.Y. 1979). We likewise conclude that Moran, who worked exclusively for the government during the Lartey investigation and trial, providing it with expertise not possessed by permanent employees of the United States, fell within the “government personnel” exception to Rule 6(e). We find that Moran’s review of Lartey’s bank records was entirely proper. We therefore do not address the government’s argument that dismissal of an indictment is an improper remedy for breach of grand jury secrecy. 2. Lartey’s Claims Regarding Count 6. Lartey was convicted on Count 6 of the indictment, which charged him with furnishing false information on, and omitting material information from, two DEA theft report forms, in violation of 21 U.S.C. § 843(a)(4)(A) (1976). Urging reversal, he contends (1) that he did not violate the applicable statute because he did not file the forms with the DEA, and (2) that the agents seized the forms unlawfully by a warrantless search of his briefcase. The first ground is spurious. Lartey misreads the statute. The statute, 21 U.S.C. § 843(a)(4)(A) (1976), is not limited to filing false reports but also prohibits furnishing “false or fraudulent information in . .. any application, report, record, or other document required to be made, kept, or filed” under the Controlled Substances Act. Unquestionably, the theft report forms were records required to be made or" }, { "docid": "13134907", "title": "", "text": "an IRS investigator was made clear to the grand jury, and he testified only in that capacity. There is no evidence that the grand jury relied on the IRS investigators as their “agents”, or that their representations to Wagner intruded upon the independence of the grand jury. In short, most of the abuses found in Kilpatrick requiring dismissal are not present in the instant case. Certainly, this conduct did not substantially impair, let alone usurp, the grand jury’s independence. Thus, standing alone, this transgression is not sufficient to require dismissal of the indictment. B. Pocket Immunity Second, defendant asserts that three out of 22 witnesses received informal or “pocket” immunity. I condemned this practice in both Anderson and Kilpatrick. Grants of “pocket” immunity do not, however, require dismissal of the indictment. In Kilpatrick, the prosecutors secured the testimony of no less than 23 witnesses by the use of “pocket” immunity. In granting this immunity, the prosecutors ignored entirely the federal immunity statute, 18 U.S.C. §§ 6001 et seq., which prescribes the congressionally authorized procedure for conferring grants of immunity. 594 F.Supp. 1324, 1336. Previously, I had described bestowal of “informal immunity” through “letters of assurance” as a “damnable practice”. United States v. Anderson, 577 F.Supp. 223, 233 (D.Colo.1983). In Kilpatrick, however, I concluded that “[pjocket immunity is illegal; when granting immunity, the Department of Justice must comply with the requirements of 18 U.S.C. §§ 6002 and 6003.” 594 F.Supp. 1324, 1349. There, I held that “the repeated use of letters of assurance or so-called ‘pocket immunity’ ... violated the applicable statutes and tainted the grand jury with its illegality.” 594 F.Supp. 1324, 1349. I did not hold, however, that use of informal immunity itself required dismissal of the indictment. Rather, I stated that [t]he conventional remedy for illegal use of “pocket immunity” would, in most instances, take the form of a post facto grant of statutory immunity or the equitable enforcement of the pocket agreement, for the benefit of grand jury witnesses who relied on the prosecutor’s promises. These concerns are not before me here. Still, the use of pocket" }, { "docid": "19983889", "title": "", "text": "by a series of reluctant witnesses, and it is not possible to determine the precise limits of the tax violations in terms of defendants and taxable periods. If such investigations become stymied, and it appears that an open-ended grand jury inquiry would probably develop information which would result in prosecution recommendation(s), the special agent should submit a complete report to the Chief . . . ” . Patterson affidavit, at ¶¶ 10, 15, 17-18. The Internal Revenue Manual effective prior to November 21, 1977 contains, at § 9627.4(7): “The United States Attorney or the Strike Force Attorney will be advised that jurisdiction of the tax aspects remains with the Internal Revenue Service and the Tax Division, Department of Justice and that prosecutive recommendations under Title 26 will be processed in the regular manner.” It is apparent, however, from the other material in the record that the final prosecutive say rests with the Tax Division of the Department of Justice. . In Wood Judge Pierce denied the motion to quash grand jury subpoenas. The witnesses were ultimately held in contempt and incarcerated, a result affirmed by the Second Circuit. In re Cueto, 554 F.2d 14 (2d Cir. 1977). . See n.7, supra. . The purpose of the amendment is stated in the Senate Report to P.L. 95-78, 95th Cong., 1st Sess. (1977), at 2 U.S.Code Cong. & Admin. News p. 530: “Attorneys for the Government in the performance of their duties with a grand jury must possess the authority to utilize the services of other government employees. Federal crimes are ‘investigated’ by the FBI, the IRS, or by Treasury agents and not by government prosecutors or the citizens who sit on grand juries. Federal agents gather and present information relating to criminal behavior to prosecutors who analyze and evaluate it and present it to grand juries. Often the prosecutors need the assistance of the agents in evaluating evidence. Also, if further investigation is required during or after grand jury proceedings, or even during the course of criminal trials, the Federal agents must do it. There is no reason for a barrier" }, { "docid": "13825498", "title": "", "text": "United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir.1960). As the Seventh Circuit noted in United States v. Stanford, 589 F.2d 285, 291 (7th Cir.1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244 (1979), “[u]nless information reveals something about the grand jury proceedings, secrecy is unnecessary.” Here, it can hardly be supposed that the bank records that Moran reviewed yielded information regarding the scope or direction of the grand jury investigation. Nor can it reasonably be expected that Moran, a former I.R.S. agent who had passed a security clearance investigation, would pass along such information if he had it. In any event, we conclude that Moran’s employment falls within the “government personnel” exception to Rule 6(e), which permits disclosure of grand jury proceedings to “[s]uch government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney’s duty to enforce a federal criminal law.” Fed.R.Crim.P. 6(e)(3)(A)(ii). There is nothing in the legislative history of the 1977 amendments to Rule 6(e) permitting disclosure to “government personnel” to indicate that the term is limited to permanent civil service employees of the United States. Rather, this exception to the rule of grand jury secrecy was adopted to override decisions “ ‘highly restrictive of the use of government experts’ ” in grand jury investigations. In re Gruberg, 453 F.Supp. 1225, 1233-34 n. 11 (S.D.N.Y.1978) (quoting S.Rep. No. 354, 95th Cong., 1st Sess. 7 (1977), reprinted in U.S.Code Cong. & Ad. News 527, 530). Accordingly, one court within this circuit has noted that the government personnel exception is not limited to federal employees, holding that grand jury transcripts could be disclosed to municipal officials assisting a grand jury investigation. In re 1979 Grand Jury Proceedings, 479 F.Supp. 93, 95-96 (E.D.N.Y. 1979). We likewise conclude that Moran, who worked exclusively for the government during the Lartey investigation and trial, providing it with expertise not possessed by permanent employees of the United States, fell within the “government personnel” exception to Rule 6(e). We find that Moran’s review" }, { "docid": "19983872", "title": "", "text": "Internal Revenue Manual, which existed both prior and subsequent to their amendment on November 21, 1977, are painstaking in their efforts to make special agents of the IRS understand that information obtained as the result of a grand jury proceeding may not be used in civil proceedings in the absence of an appropriate court order. Finally, the affidavit of Assistant United States Attorney Patterson, describing the pending grand jury investigation, states explicitly that the grand jury’s inves tigation relates to possible violations of federal criminal law; that the office of the United States Attorney will supervise the presentation to the grand jury; and that the Department of Justice will determine whether an indictment should be sought, albeit in consultation with IRS. Ulster contends that this grand jury procedure, as implemented in the present case, constitutes an abuse of the grand jury system which cannot be tolerated. It is said that the “open-ended” grand jury procedures permit federal prosecutors to use the grand jury to conduct an IRS administrative investigation; that the procedure violates limitations on the investigatory powers of the IRS by usurping the special investigatory powers of the grand jury; and that, assuming the validity of an open-ended grand jury in limited circumstances, those circumstances have not been demonstrated in the case at bar. The Court finds no merit in any of these contentions. III. We may recognize at the outset that certain limitations exist with respect to the use of grand juries, which the courts in the exercise of their supervisory powers will enforce. In Matter of Wood, 430 F.Supp. 41, 47 (S.D.N.Y.1977), Judge Pierce said for this Court: “Thus, there are limits imposed upon the use of grand juries. The government may not employ the powers of the grand jury to inquire into matters solely for use in civil litigation. See United States v. Doe, 341 F.Supp. 1350 (S.D.N.Y.1972). The prosecutor may not employ the subpoena power solely to summon witnesses to his office to conduct a private investigation. See Durbin v. United States, 94 U.S.App.D.C. 415, 221 F.2d 520, 524 (1954). Nor may the government employ" }, { "docid": "6027775", "title": "", "text": "1018 (1st Cir.1982); United States v. Seid-litz, 589 F.2d 152, 160 (4th Cir.1978). Appellants argue that their failure to challenge the indictment prior to' trial should not result in a waiver because they were unaware of the grounds for this motion until McAllister was called as a witness at trial. Whatever the merits of this argument, we shall treat the district court’s ruling on the motion, made without reference to its tardiness, as implicitly granting relief from the waiver as permitted by Rule 12(f). Moreover, because of the importance and novelty of the claim presented, and because Rule 47 does not specify that the grounds for the motion be presented “with particularity”, we shall treat appellants’ argument regarding the alleged violation of the independence and integrity of the grand jury as adequately preserved for appeal. The importance of the role of the grand jury as an independent decision making body within the federal criminal justice system cannot be overstated. The grand jury represents a constitutionally-mandated barrier between the accused and the investigative and prosecutorial agencies of government, thus “ ‘protecting citizens against unfounded criminal prosecutions.’ ” United States v. Sells Engineering, Inc., 463 U.S. 418, 423 (1983), quoting Branzburg v. Hayes, 408 U.S. 665, 686-87 (1972). The grand jury also serves in a separate but equally important role, as an investigative body empowered to call witnesses and to require the production of documents and other tangible evidence. Sells, supra, 463 U.S. at 424. The cloak of grand jury secrecy, rigidly enforced, furthers the investigative function. By assuring all witnesses of anonymity, those who otherwise would be reluctant or unwilling to testify will be more forthcoming. Secrecy also helps ensure the preservation of evidence and protects the reputations of those who ultimately are exonerated. Id. By its nature this independent investigative body of lay citizens has limited means by which it can garner facts and evidence on its own. It must depend on the prosecutor “to secure the evidence or witnesses it requires.” Sells, supra, 463 U.S. at 430. Once that evidence is obtained, moreover, the grand jury often requires the" }, { "docid": "10940414", "title": "", "text": "an individual does not necessarily remove that individual’s right against self-incrimination, as a grant of immunity does. The incessant use of informal immunity exhibits a disregard for that distinction and for the important constitutional rights involved. The involuntary removal of an individual’s fifth amendment right should be undertaken with the strictest regard for the relevant dictates of congress. Nothing in §§ 6002 and 6003 contemplates compelling a witness’s testimony merely on the word of an assistant U.S. Attorney. The practice of compelling testimony by having an IRS agent make an oral representation of immunity on behalf of the grand jury is even further removed from the mandate and spirit of the statute. Such a lawless procedure, like the use of law enforcement officers as “special grand jury agents” cannot help but destroy the public perception of the grand jury as an independent democratic institution protecting the constitutional rights of individuals and checking the prosecutorial power of the federal government. CONCLUSION The manner in which the government conducted itself during the course of the grand jury proceedings which resulted in the indictments in this case obfuscated the important constitutional distinctions between prosecutor, law enforcement investigator and grand jury. The disregard of those distinctions due to deliberate conduct on the part of the government significantly impaired the grand jury’s ability to exercise independent judgment. The government’s involvement of the grand jury in the undercover infiltration of the defendants’ organization and legal consultations, its violation of Rule 6(e) by using an expert to evaluate secret evidence and its use of “grand jury agents” and informal immunity all combined to encroach upon the grand jury’s independence and undermine the integrity of the judicial process. IT IS HEREBY ORDERED: That the motions to quash the indictment, to dismiss Count I, to dismiss counts IV-VI and to dismiss count X are denied; and The motion to dismiss for governmental misconduct is granted. Sitting by designation. . The statutory \"fair cross-section of the community” standard and the constitutional \"reasonably representative” standard are \"functional equivalent[s].” United States v. Test, 550 F.2d 577, 584, (10th Cir.1976). . This review" }, { "docid": "2988974", "title": "", "text": "H. Sandler, New York State Supreme Court, dismissed the second state court indictment because the Special Prosecutor, Maurice Nadjari, who had presented the case to the grand jury, had exceeded his lawful authority. In considering several remedies — dismissal of the indictment, permitting the New York County District Attorney to proceed with the case, or staying the case pending the determination of an appeal in a case raising the same issues— Justice Sandler emphasized the existence of the federal indictment and concluded that dismissal was appropriate. Thus, considerations of comity are not adversely affected by proceeding with the trial of this case. E. Prosecutorial Misconduct Four areas of prosecutorial misconduct are alleged in support of the motion to dismiss: (1) consultation by the government with employees of two corporations without notifying corporate counsel; (2) violation of grand jury secrecy by exchanging information with the state prosecutor; (3) the presentation of New York City Department of Investigation testimony to the grand jury; and (4) the questioning of Goldman before a grand jury. Counsel argues that the prosecutor should not have interviewed employees of two corporations with which Goldman is affiliated without first notifying corporate counsel and permitting him an opportunity to be present. Bypassing the serious standing problems which may well preclude Mr. Goldman from asserting this claim, there does not appear to be anything in the slightest way improper with these actions. There is no allegation that the two employees who spoke with government attorneys did not have the opportunity to consult with counsel and, in fact, the contrary appears true: each had conferred with private counsel. If government agents investigating criminal activity by a corporation or its officers were required to seek the approval of corporate counsel prior to interviewing employees, the administration of the criminal laws, particularly as they apply to white collar crimes, would be severely hampered. No constitutional right of the accused, the corporation, or the employee is violated by the government’s action. Next, it is alleged that Rule 6(e), Fed.R.Crim.P., requiring grand jury secrecy, was violated by the exchange of grand jury evidence between the" }, { "docid": "5153329", "title": "", "text": "defining, and consequent confusion and uncertainty concerning, the intended scope of the proposed change than from a fundamental disagreement with the objective. “Attorneys for the Government in the performance of their duties with a grand jury must possess the authority to utilize the services of other government employees. Federal crimes are ‘investigated’ by the FBI, the IRS, or by Treasury agents and not by government prosecutors or the citizens who sit on grand juries. Federal agents gather and present information relating to criminal behavior to prosecutors who analyze and evaluate it and present it to grand juries. Often the prosecutors need the assistance of the agents in evaluating evidence. Also, if further investigation is required during or after grand jury proceedings, or even during the course of criminal trials, the Federal agents must do it. There is no reason for a barrier of secrecy to exist between the facets of the criminal justice system upon which we all depend to enforce the criminal laws. “The parameters of the authority of an attorney for the government to disclose grand jury information in the course of performing his own duties is not defined by Rule 6. However, a commonsense interpretation prevails, permitting ‘Representatives of other government agencies actively assisting United States attorneys in a grand jury investigation . . . access to grand jury material in the performance of their duties.’ Yet projected against this current practice, and the weight of case law, is the anomalous language of Rule 6(e) itself, which, in its present state of uncertainty, is spawning some judicial decisions highly restrictive of the use of government experts that require the government to ‘show the necessity (to the Court) for each particular person’s aid rather than showing merely a general necessity for assistance, expert or otherwise’ and that make Rule 6(e) orders subject to interlocutory appeal. “In this state of uncertainty, the Committee believes it is timely to redraft subdivision (e) of Rule 6 to make it clear. “Paragraph (1) as proposed by the Committee states the general rule that a grand jury, an interpreter, a stenographer, an operator" }, { "docid": "10940411", "title": "", "text": "of the use of “grand jury agents” also occurs in United States v. Cosby, 601 F.2d 754 (5th Cir.1979). In a footnote the Cosby court cited “cases where the use of third parties to assist grand juries has been considered and approved.” 601 F.2d at 757-58, n. 6. The court assumed without deciding that the use of grand jury agents was a proper practice and went on to reverse the case on other grounds. Thus, there is no thorough analysis of the problems posed by the extensive use of “grand jury agents” and of the manner in which they were used in this ease. The conduct of those agents here is a link in the chain of government behavior that impaired the grand jury’s independence and undermined its integrity. The government, in this case, made extensive use of informal or “pocket” immunity. This is putative immunity granted to a witness by letter or oral representation of the prosecutor rather than ordered by a judge after satisfaction of the procedures of 18 U.S.C. §§ 6002 and 6003. Such immunity poses serious problems since it circumvents the statute and leaves an inadequate record of the scope of the immunity granted. See, United States v. Quatermain, Drax, 613 F.2d 38 (3rd Cir. 1980). The procedures established by congress in 18 U.S.C. §§ 6002 and 6003 clearly indicate an intent to formalize, standardize and limit the use of immunity. The statute requires approval of a senior Justice Department official as well as application to and order of a United States District Court Judge before immunity is conferred. The procedure leaves no doubt as to the accomplishment of the grant, the particularized need of the witness and the scope of the immunization. It also leaves for congress and the public a complete and definite record of the frequency, efficacy and reasons for the use of immunity. Informal immunity, apparently in widespread use by the Justice Department, accomplishes none of those goals. It is a damnable practice. No notice need be given to senior Justice Department officials or to a judge. The only record, if any," }, { "docid": "13134901", "title": "", "text": "577 F.Supp. 223, 230; Kilpatrick, 594 F.Supp. 1324, 1352. II. Bearing in mind these principles, I now turn to the specific instances of alleged prosecutorial misconduct in the instant case. Relying primarily on Anderson and Kilpatrick, defendant alleges that the prosecutors improperly: 1) used grand jury agents, 2) granted “pocket” or “informal” immunity, 3) allowed an IRS investigator to mischaracterize the evidence before the grand jury, 4) introduced extraneous prejudicial information, 5) testified before the grand jury through the use of leading questions and by directly answering jurors’ questions, 6) placed a government agent in the defense camp in violation of defendant’s Fourth Amendment rights, 7) elicited testimony from defendant’s wife in violation of his marital privilege, and 8) delayed return of the indictment. Each of these alleged instances of misconduct will be examined separately in order to determine if any violation, standing alone, would require dismissal. If none would independently require dismissal of the indictment, then I shall consider their cumulative effect in determining whether the grand jury’s independent role in returning this indictment was usurped. A. Grand Jury Agents Defendant first asserts that the prosecutors in the instant case, as in Kilpatrick, improperly used grand jury “agents”. In Kilpatrick, I held that the use of grand jury “agents” in the circumstances of that case violated Fed.R.Crim.P. 6(d) and required dismissal of the indictment. 594 F.Supp. 1324, 1344. There, prosecutors had administered oaths to IRS investigators, purportedly swearing them in as “agents of the grand jury”. 594 F.Supp. 1324, 1328. The prosecutors misled the grand jury as to the appropriate role of these investigators and urged the grand jury members to rely upon them as their “agents”. 594 F.Supp. 1324, 1328-29. When the investigators appeared as witnesses, the government attorney reiterated that they were appearing as “agents of the grand jury”. 594 F.Supp. 1324,1329. Further, the prosecutors instructed the investigators to inform witnesses that they were assisting a grand jury investigation when they went to interview the witnesses. 594 F.Supp. 1324, 1329. Finally, contrary to the role of the investigators described to the grand jury by the prosecutors, the" }, { "docid": "21655791", "title": "", "text": "his complaint to make the allegations specific.”). We turn to an evaluation of the plaintiffs’ allegations in the light of the principles enunciated by the Supreme Court in Imbler. III. We agree with the district court that the plaintiffs’ general allegations of conspiracy and “active cooperation,” particularly because the complaint on its face raises the possibility of official immunity, are insufficient to withstand a motion to dismiss. See Elliot, 751 F.2d at 1479; see also Arsenaux, 726 F.2d at 1024 (“Mere conclusory allegations of conspiracy cannot, absent reference to material facts, survive a motion to dismiss.”). The only specific allegations against Brown are that, apparently to influence the grand jury to clear Morrison’s killer, he presented irrelevant evidence to the grand jury and “downgraded” the testimony of a grand jury witness. The plaintiffs argue that these activities were conducted by Brown in his role as an investigative officer, not as an advocate. Thus, Brown is not protected by Imbler because the Supreme Court expressly limited the scope of its decision in that case to activities “intimately associated with the judicial phase of the criminal process.” 424 U.S. at 430, 96 S.Ct. at 995. In arguing that Brown’s conduct is not protected by absolute immunity, the plaintiffs rely principally on Briggs v. Goodwin, 569 F.2d 10 (D.C.Cir.1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978). In Briggs, a federal prosecutor participating in a grand jury investigation served subpoenas on several witnesses who were members of a protest group suspected of violating federal anti-riot laws. The witnesses, who feared infiltration into their group by FBI agents, sought disclosure by the government of the identity of any informants among their ranks. In response, the district court placed the prosecutor on the witness stand and asked him if any of the subpoened witnesses were in reality government employees. The prosecutor testified under oath that there were no informants among the witnesses. The prosecutor’s testimony was false, and his alleged perjury formed the basis of a Bivens action against him. The District of Columbia Circuit held that the prosecutor was not" }, { "docid": "5153328", "title": "", "text": "the government’ includes those enumerated in Rule 54(c); it also includes such other government personnel as are necessary to assist the attorneys for the government in the performance of their duties. It would also make a series of changes in the rule designed to make its provisions consistent with other provisions in the Rules and the Bail Reform Act of 1966. “The Advisory Committee note states that the proposed amendment is intended ‘to facilitate an increasing need, on the part of Government attorneys to make use of outside expertise in complex litigation.’ “The note indicated that: Although case law is limited, the trend seems to be in the direction of allowing disclosure to Government personnel who assist attorneys for the Government in situations where their expertise is required. This is subject to the qualification that the matter disclosed be used only for the purposes of the grand jury investigation. “It is past history at this point that the Supreme Court proposal attracted substantial criticism, which seemed to stem more from the lack of precision in defining, and consequent confusion and uncertainty concerning, the intended scope of the proposed change than from a fundamental disagreement with the objective. “Attorneys for the Government in the performance of their duties with a grand jury must possess the authority to utilize the services of other government employees. Federal crimes are ‘investigated’ by the FBI, the IRS, or by Treasury agents and not by government prosecutors or the citizens who sit on grand juries. Federal agents gather and present information relating to criminal behavior to prosecutors who analyze and evaluate it and present it to grand juries. Often the prosecutors need the assistance of the agents in evaluating evidence. Also, if further investigation is required during or after grand jury proceedings, or even during the course of criminal trials, the Federal agents must do it. There is no reason for a barrier of secrecy to exist between the facets of the criminal justice system upon which we all depend to enforce the criminal laws. “The parameters of the authority of an attorney for the government" }, { "docid": "5587096", "title": "", "text": "protections that are provided to a witness who testifies pursuant to such immunity are not applicable. United States v. Turner, 936 F.2d 221, 223-24 (6th Cir.1991) (noting that unlike informal immunity, a grant of statutory immunity pursuant to 18 U.S.C. § 6002 “assures a witness that his immunized testimony will be inadmissable in any future criminal proceeding, as will be any evidence obtained by prosecutors directly or indirectly as a result of the immunized testimony”). In contrast, where a prosecutor assures a grand jury witness that he or she will be immune from prosecution based upon the witness’s testimony before the grand jury, the promise is contractual and only binds the parties who are privy to the original agreement. Id. at 223 (concluding that “the ‘immunity’ the Turners received in the Southern District of Florida was nothing more than a promise on the part of the federal prosecutor that they would not be charged in that district and that their testimony would not be disseminated to other government agencies”). Although Daniels claims that CID Agents Bolton and Elam told her that her testimony would be immunized as long as it was truthful, neither agent conducted the investigations into her criminal activities after 1993. AUSA Hester, moreover, explicitly refused to make any promises about potential prosecutions for Daniels’s future illegal actions. Finally, contractual remedies govern if a breach of a grant of informal immunity occurs. Id. at 224 (noting that “[presumably, the Turners would have normal contractual remedies available to them if the federal prosecutor breached his promise”). Despite these reservations, we will adopt the district court’s assumption (without deciding) that the government granted Daniels immunity prior to her 1993 grand jury testimony. Our review is therefore limited to determining whether the district court’s conclusion that the government established independent bases for proceeding with its investigation and obtaining the search warrant and indictment against Daniels was clearly erroneous. The Supreme Court’s decision in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), provides the applicable framework for evaluating a claim that the government used immunized testimony" }, { "docid": "4906827", "title": "", "text": "in progress, under which an IRS investigation could be referred to the Justice Department prior to completion of that investigation with a recommendation that a grand jury investigation be conducted (a so-called “open-ended grand jury inquiry”). Defendant contends that this procedure allowed the IRS to further its own investigation by use of the grand jury’s broad investigative powers, in violation of Rule 6(e). Second, defendant contends that disclosure of grand jury evidence to the IRS following conclusion of the grand jury proceeding violated Rule 6(e). In In Re Gruberg, 453 F.Supp. 1225 (D.C.1978), the Ulster Electric Supply Company moved to quash the initial subpoena served by the grand jury investigating this case on grounds, among others, that the “open-ended” grand jury referral procedures permitted “federal prosecutors to use the grand jury to conduct an IRS administrative investigation”; that the procedure violated limitations on the investigatory powers of the IRS “by usurping the special investigatory powers of the grand jury,” id. at 1230; and that Assistant United States Attorney Patterson disclosed matters occurring before the grand jury to IRS agents, id. at 1233. Judge Haight rejected these claims, finding that “all the indications in the record are to the effect that the grand jury is concentrating solely upon an investigation of criminal offenses.” id. at 1232, and that disclosures of the Assistant United States Attorney, Mr. Patterson, to the IRS fell precisely within the class of disclosures permitted under Rule 6(e)(2)(A)(ii). Defendant Ronder has alleged no additional facts which would support a reconsideration of the issue of the propriety of IRS referral of the investigation to the grand jury or which would indicate that any subsequent disclosures by Mr. Patterson to the IRS of matters occurring before the grand jury would not also fall within the provisions of Rule 6(e)(2)(A)(ii). Accordingly, this motion is denied. 5. Improper Disclosure of Matters Before Grand Jury Defendant Ronder further alleges that Government attorneys and agents investigating this case improperly disclosed matters occurring before the grand jury to Charles Simmons, an attorney previously retained by Ulster Electric Supply Company in connection with the investigation, and" } ]

[ { "docid": "3132785", "title": "", "text": "potential liability under Title IX for the statute to effectively deter dis crimination. If the institution intends to discriminate, it will have notice of its transgression and subsequent liability. The Davis and Seamons courts, in contrast, do not focus on the fact that Congress enacted Title IX through exercise of its spending power. Rather, these courts focus on the fact that Title IX was enacted to prohibit discrimination based on sex in the educational environment. See Davis, 74 F.3d at 1194 (noting that when an educational institution knowingly fails to take action to remedy a hostile environment caused by a student’s sexual harassment of another, it denies that student the benefits of that educational program in violation of Title IX); Seamans v. Snow, 84 F.3d 1226, 1232 (10th Cir.1996) (adopting the Davis court’s test for an actionable a peer-to-peer sexual harassment claim but employing a rigorous standard to determine whether the harassment was “based on sex”). The Davis and Seamons courts find support for their interpretation in the Supreme Court’s Franklin decision, where the Court indicated that the Title VII “hostile environment” theory of sex discrimination is also available to Title IX plaintiffs. The district courts confronting the issue have held that a showing of intent to discriminate is necessary to state an actionable claim for monetary damages under Title IX. Where direct evidence of intent to discriminate is lacking, however, the lower courts have recognized that intent to discriminate can be inferred through a school district’s active encouragement of peer harassment, actual knowledge of and failure to take steps to remedy such harassment, or tolerance of harassing behavior. See Bruneau v. South Kortright Central Sch., 935 F.Supp. 162 (N.D.N.Y.1996); Burrow v. Postville Community Sch. Dist., 929 F.Supp. 1193 (N.D.Iowa 1996); Bosley v. Kearney R-1 Sch. Dist., 904 F.Supp. 1006 (W.D.Mo.1995); Oona R.-S v. Santa Rosa City Sch., 890 F.Supp. 1452 (N.D.Cal.1995); Doe v. Petaluma City Sch. Dist., 830 F.Supp. 1560 (N.D.Cal.1993), reversed, on other grounds, 54 F.3d 1447 (9th Cir.1995). In Burrow v. Postville Community School District, 929 F.Supp. 1193 (N.D.Iowa 1996), Chief Judge Michael J. Melloy considered a" } ]

[ { "docid": "2597474", "title": "", "text": "refused to consider whether the standards and remedies of Title VII should be directly applied to Title IX cases. 503 U.S. at 65, n. 4, 112 S.Ct. at 1032 n. 4. On the other hand, in characterizing the plaintiffs claim as one for “intentional discrimination,” the Court cited without explanation to Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), a hostile environment case arising under Title VII. 503 U.S. at 75,112 S.Ct. at 1037-38. To further complicate matters, the Meritor Court had held that employers are not “always automatically liable for sexual harassment by their supervisors” and instructed the lower courts to look to agency principles for guidance in formulating a rule on employer liability. 477 U.S. at 72, 106 S.Ct. at 2407-08. Yet the Franklin Court, while relying on Meritor, made no mention of agency principles and gave no explanation of the connection between the act of the teacher in sexually harassing a student, which it characterized as intentional discrimination, and the liability of the school district for intentional discrimination. The Franklin Court must have been aware that the appellate courts had fashioned a test for Title VII employer liability pursuant to the Court’s instructions in Meritor. Under that test, an employer is liable for the existence of a hostile environment in its workplace only if the employer failed to take prompt remedial action after the employer actually knew or should have known of the existence of the hostile environment. See, e.g., EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515-16 (9th Cir.1989). The facts alleged in Franklin would have met that test, for the plaintiff alleged that teachers and administrators actually knew of the harassment in the school but failed to do anything to remedy it. However, the Franklin Court did not refer to or expressly rely upon that knowledge and inaction when characterizing the plaintiff’s claim as one for intentional discrimination. Yet another layer of uncertainty is imposed by the context in which the Franklin Court raised the concept of intentional discrimination. That context was a discussion of whether the" }, { "docid": "22065952", "title": "", "text": "Gray’s conduct, as alleged by Ellison, sufficiently severe and pervasive to alter a condition of employment and create an abusive working environment. Sexual harassment is a major problem in the workplace. Adopting the victim’s perspective ensures that courts will not “sustain ingrained notions of reasonable behavior fashioned by the offenders.” Lipsett, 864 F.2d at 898, quoting, Rabidue, 805 F.2d at 626 (Keith, J., dissenting). Congress did not enact Title YII to codify prevailing sexist prejudices. To the contrary, “Congress designed Title VII to prevent the perpetuation of stereotypes and a sense of degradation which serve to close or discourage employment opportunities for women.” Andrews, 895 F.2d at 1483. We hope that over time both men and women will learn what conduct offends reasonable members of the other sex. When employers and employees internalize the standard of workplace conduct we establish today, the current gap in perception between the sexes will be bridged. IV We next must determine what remedial actions by employers shield them from liability under Title VII for sexual harassment by co-workers. The Supreme Court in Meritor did not address employer liability for sexual harassment by co-workers. In that case, the Court discussed employer liability for a hostile environment created by a supervisor. The Court’s discussion was brief, and it declined to issue a definitive rule. 477 U.S. at 72, 106 S.Ct. at 2408. On one hand, it held that employers are not strictly liable for sexual harassment by supervisors. Id. On the other hand, it stated that employers can be liable for sexual harassment without actual notice of the alleged discriminatory conduct. Id. It agreed with the EEOC that courts should look to agency principles to determine liability. Id. We applied Meritor in E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504 (9th Cir.1989). We held that “employers are liable for failing to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.” Id. at 1515-1516. Because management level employees at the hotel took no action to redress the sexual harassment of which they knew" }, { "docid": "2597479", "title": "", "text": "hand, in the case of harassment by a non-agent, liability would be imposed under Title VII whenever the entity knowingly failed to remedy the harassment, while liability would be imposed under the Petaluma I test only if the failure to remedy is caused by the discriminatory animus of an agent of the entity. Since this Court issued its ruling in Peta-luma I, several other courts have examined the standard to be applied in Title IX peer harassment hostile environment cases. The approaches taken have varied. That which most closely resembles this Court’s approach in Petaluma I is found in Bosley v. Kearney R-1 School District, 904 F.Supp. 1006 (W.D.Mo.1995). The Bosley court found, as had this Court, that intentional discrimination on the part of the district is a required element of a claim for damages, holding that “plaintiff must show that the school district selected a particular course of action in response to her complaints of sexual harassment at least in part ‘because of plaintiffs sex.” Id. at 1021. However, the Bosley court held that Title VII provides the most appropriate standard for enforcing the anti-discrimination provisions of Title IX. The Bosley court slightly-modified the Title VII standard for entity liability, raising the test of “knew or should have known of the hostile environment and took no or insufficient remedial action,” id. at 1028 (citing Murray v. New York University College of Dentistry, 57 F.3d 243, 249 (2d Cir.1995)) (employer liability standard), to “knew of the harassment and intentionally failed to take proper remedial action.” Id. 904 F.Supp. at 1023. The Bosley court specified that the required intent could be established by inference. Id. at 1021. Thus, upon a showing that the plaintiff was subjected to harassment based on sex while participating in an educational program, and that the school district knew of the harassment and failed to take appropriate remedial action, the trier of fact could infer that the failure to take remedial action constituted intentional discrimination. Id. at 1025. The Eleventh Circuit, in Davis v. Monroe County Board of Education, 74 F.3d 1186 (11th Cir.1996), took a different" }, { "docid": "3170661", "title": "", "text": "First Circuit looked to EEOC guidelines for employment discrimination by institutions receiving federal financial assistance, which recommend applying Title VII standards, and the legislative history of Title IX, which indicates that Title IX was meant to close a loophole in Title VII by extending its prohibitions to educational institutions. Id. at 897. The Lipsett court specifically noted, however, that its ruling was confined to employment-related harassment and that it was not addressing the standards to be applied when a student is harassed. Id. Ellison v. Brady, 924 F.2d 872 (9th Cir.1991), is the leading Ninth Circuit case on Title VII. In Ellison, a female employee of the IRS complained to her employer of sexual harassment by a co-worker. The employee alleged that the employer did not respond adequately to her complaints. The Ninth Circuit noted that: a hostile environment exists when an employee can show (1) that he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Ellison, 924 F.2d at 875-76 (footnote omitted). The court held that the severity and pervasiveness of the sexual harassment should be assessed from the perspective a reasonable victim (who is generally a reasonable woman). Id., 924 F.2d at 878-79. The Ninth Circuit noted that employers are not strictly liable for harassment by their employees. Rather, they are liable “for failure to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.” Id., 924 F.2d at 881 (quoting E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1515-16 (9th Cir.1989)). The court held that when co-worker sexual harassment is alleged, the employer must take action “reasonably calculated to end the harassment,” Id., 924 F.2d at 882 (quoting Katz v. Dole, 709 F.2d 251, 256 (4th Cir.1983)). The court continued: [T]he reasonableness of an employer’s remedy will depend on its ability" }, { "docid": "11420193", "title": "", "text": "be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance____ 20 U.S.C.A. § 1681 (West 1990). Under Title IX, an educational entity receiving federal funds may be held liable if attendees suffer discriminatory treatment. See Lipsett v. University of P.R., 864 F.2d 881, 897, 901 (1st Cir.1988) (discriminatory treatment by supervisor in mixed employment-training context). The Supreme Court has held than an implied private right of action exists for violations of Title IX. See Cannon v. University of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 1968, 60 L.Ed.2d 560 (1979). It has also held that monetary damages are available for intentional violations of Title IX’s provisions. See Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 74-75, 112 S.Ct. 1028, 1037-38, 117 L.Ed.2d 208 (1992). This case, however, presents an issue undecided by either the Supreme Court or this Circuit: whether and to what extent school districts can be found liable under Title IX for peer sexual harassment, i.e., the sexual harassment of one student by another. Several other federal courts have considered this issue. See Seamons v. Snow, 84 F.3d 1226 (10th Cir.1996); Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006 (5th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 165, 136 L.Ed.2d 108 (1996); Davis v. Monroe County Bd. of Educ., 74 F.3d 1186 (11th Cir.1996), vacated & reh’g en banc granted, 91 F.3d 1418 (11th Cir.1996); Piwonka ex rel. v. Tidehaven Indep. Sch. Dist., 961 F.Supp. 169 (S.D.Tex.1997); Collier ex rel. Collier v. William Penn Sch. Dist., 956 F.Supp. 1209 (E.D.Pa.1997); Franks v. Kentucky Sch. for the Deaf, 956 F.Supp. 741 (E.D.Ky.1996); Doe ex rel. Doe v. Petaluma City Sch. Dist., 949 F.Supp. 1415 (N.D.Cal.1996); Wright ex rel. Wright v. Mason City Community Sch. Dist., 940 F.Supp. 1412 (N.D.Iowa 1996); Linson v. Trustees of the Univ. of Pa., No. 95-3681, 1996 WL 479532 (E.D.Pa. Aug.21, 1996); Bruneau ex rel. Schofield v. South Kortright Cent. Sch. Dist., 935 F.Supp. 162 (N.D.N.Y.1996); Burrow ex rel. Burrow v. Postville Community Sch. Dist., 929" }, { "docid": "17064091", "title": "", "text": "“prohibits discriminatory acts” by educational institutions receiving federal financial assistance). Responsibility for discriminatory acts includes liability for failure to remedy a known sexually hostile environment. Accordingly, the district court was correct in applying Title VII principles to define the contours of Brzonkala’s hostile environment claim. We now turn to that application. 2. Under Title VII “to prevail on a ‘hostile work environment’ sexual harassment claim, an employee must prove: (1) that he [or she] was harassed ‘because of his [or her] ‘sex’; (2) that the harassment was unwelcome; (3) that the harassment was sufficiently severe or pervasive to create an abusive working environment; and (4) that some basis exists for imputing liability to the employer.” Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 142 (4th Cir.1996). Similarly, under Title IX a plaintiff asserting a hostile environment claim must show: “1) that she [or he] belongs to a protected group; 2) that she [or he] was subject to unwelcome sexual harassment; 3) that the harassment was based on sex; 4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of her [or his] education and create an abusive educational environment; and 5) that some basis for institutional liability has been established.” Kinman v. Omaha Public Sch. Dist., 94 F.3d 463, 467-68 (8th Cir.1996); Seamons v. Snow, 84 F.3d 1226, 1232 (10th Cir.1996) (same); Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 540 (1st Cir.1995), cert. denied, 516 U.S. 1159, 116 S.Ct. 1044, 134 L.Ed.2d 191 (1996) (same); Nicole M. v. Martinez Unified Sch. Dist., 964 F.Supp. 1369, 1376 (N.D.Cal.1997) (same); see also Doe, 103 F.3d at 515 (holding that the elements of a “hostile environment claim under Title VII equally apply under Title IX”); Oona, R.S. v. McCaffrey, 122 F.3d 1207, 1210 (9th Cir.1997) (applying Title VII standards to Title IX hostile environment claim); Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248-51 (2d Cir.1995) (same); Collier v. William Penn Sch. Dist., 956 F.Supp. 1209, 1213-14 (E.D.Pa.1997) (same); Pinkney v. Robinson, 913 F.Supp. 25, 32 (D.D.C.1996) (same); Bosley" }, { "docid": "11420198", "title": "", "text": "peer sexual harassment violates Title IX, and that a school district can violate Title IX by failing to take reasonable steps to curtail peer sexual harassment. See, e.g., Office for Civil Rights, Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed.Reg. 12,034 (1997) (final policy guidance) [hereinafter OCR, Peer Harassment Guidance ]. According to OCR, “a school will be liable under Title IX if its students sexually harass other students if (i) a hostile environment exists in the school’s programs or activities, (ii) the school knows or should have known of the harassment, and (iii) the school fails to take immediate and appropriate corrective action.” Id at 12,039. The sound policy reasons for extending Title IX liability to the peer sexual harassment context have been adequately discussed in other cases and will not be reiterated here. See, e.g., Rowinsky, 80 F.3d at 1012-16; Collier, 956 F.Supp. at 1213; Bruneau, 935 F.Supp. at 172; Burrow, 929 F.Supp. at 1204-05; Bosley, 904 F.Supp. at 1021-23. The equally sound reasons for tailoring the applicable standard for liability to the unique circumstances present in the Title IX context have also been ably explicated. See, e.g., Rowinsky, 80 F.3d at 1024-25 (Dennis, J., dissenting); Cohen, 991 F.2d at 900-01; Bosley, 904 F.Supp. at 1023. Therefore, the court looks to Title VII principles for guidance, but adopts a flexible approach sensitive to the differences between the peer sexual harassment and employment contexts. Although the courts that have considered this, issue have applied different standards, these standards can be grouped into three basic approaches. The most rigorous approach has been adopted by the Fifth Circuit in Rowinsky. In Rowinsky, the Fifth Cir'cuit held that: In the case of peer sexual harassment, a plaintiff must demonstrate that the school district responded to sexual harassment claims differently based on sex. Thus, a school district might violate Title IX if it treated sexual harassment of boys more seriously than sexual harassment of girls, or even if it turned a blind eye toward sexual harassment of girls while addressing assaults that harmed boys. Rowinsky," }, { "docid": "1757046", "title": "", "text": "42 F.3d at 508 (“The proper analysis for employer liability in hostile environment cases is what management-level employees knew or should have known....”); Hall, 842 F.2d at 1015-16 (explaining that employer had actual notice because foreman was told of harassment); Katz v. Dole, 709 F.2d 251, 255-56 (4th Cir.1983) (describing personnel that put employer on notice of harassment as “supervisory”); Henson, 682 F.2d at 905 (“The employee can demonstrate that the employer knew of the harassment by showing that she complained to higher manage-ment_”). Likewise, under § 219, courts require that a plaintiff notify management-level employees before an employer can be said to have actual knowledge. See Hirschfeld, 916 F.2d at 577 (citing EEOC v. Hacienda Hotel, 881 F.2d 1504, 1516 (9th Cir.1989)). There is no reason to define actual notice differently in the Title IX context. In fact, the one Title VII case cited by Leija to support her “appropriate employee” contention described the personnel that the plaintiff notified as “supervisory”. Llewellyn v. Celanese Corp., 693 F.Supp. 369, 380 (W.D.N.C.1988). Moreover, it makes little sense, on the one hand, to make liability contingent, inter alia, on whether the employer (school district) takes “prompt remedial action”, see DeAngelis, 51 F.3d at 593, yet, on the other hand, define “employer” so broadly as to include personnel who have no authority to take such action. Therefore, before the school district can be held liable under Title IX for a teacher’s hostile environment sexual abuse, someone in a management-level position must be advised about (put on notice of) that conduct, and that person must fail to take remedial action. For purposes of this appeal, we need not decide, and thus leave for another day, the question of whether the appropriate (or lowest level) management-level person to be notified is a Title IX coordinator, vice-principal, principal, superintendent, or school board member. But cf. Rowinsky, 80 F.3d at 1021 (Dennis, J., dissenting) (student-student sexual harassment is actionable under Title IX if “board had knowledge of the harassment and failed to take appropriate corrective action”) (emphasis added). Obviously, that question is strongly linked to the facts" }, { "docid": "11420197", "title": "", "text": "S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1986). In at least one case of a student-employee who was harassed, the First Circuit has concluded that Title VII principles apply to Title IX cases. See Lipsett, 864 F.2d at 896-97. However, in that case the Circuit explicitly limited its ruling to the facts before it and gave no indication that its analysis could be extended to other Title IX cases absent an employer-employee relationship. See id. at 897 (“[O]ur present holding ... is limited to the context of employment discrimination____ We have no difficulty extending the Title VII standard to discriminatory treatment by a supervisor in this mixed employment-training context”). Several courts in other circuits have adapted the hostile work environment framework for use in Title IX cases. See, e.g., Wright, 940 F.Supp. at 1416-17; Bruneau, 935 F.Supp. at 174. Also relevant to the court’s consideration is OCR’s interpretation of Title IX. See Cohen v. Brown Univ., 991 F.2d 888, 895 (1st Cir.1993) (courts “must accord [OCR’s] interpretation of Title IX appreciable deference”). OCR has determined that peer sexual harassment violates Title IX, and that a school district can violate Title IX by failing to take reasonable steps to curtail peer sexual harassment. See, e.g., Office for Civil Rights, Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed.Reg. 12,034 (1997) (final policy guidance) [hereinafter OCR, Peer Harassment Guidance ]. According to OCR, “a school will be liable under Title IX if its students sexually harass other students if (i) a hostile environment exists in the school’s programs or activities, (ii) the school knows or should have known of the harassment, and (iii) the school fails to take immediate and appropriate corrective action.” Id at 12,039. The sound policy reasons for extending Title IX liability to the peer sexual harassment context have been adequately discussed in other cases and will not be reiterated here. See, e.g., Rowinsky, 80 F.3d at 1012-16; Collier, 956 F.Supp. at 1213; Bruneau, 935 F.Supp. at 172; Burrow, 929 F.Supp. at 1204-05; Bosley, 904 F.Supp. at 1021-23. The equally sound reasons for" }, { "docid": "1757058", "title": "", "text": "v. State Bd. of Community Colleges and Occupational Educ., 813 F.2d 311 (10th Cir.1987), cert. denied, 484 U.S. 849, 108 S.Ct. 148, 98 L.Ed.2d 104 (1987); cf. Doe v. Taylor, 975 F.2d 137, 149 (5th Cir.1992) (“[T]here is no meaningful distinction between the work environment and school environment which would forbid such discrimination in the former context and tolerate it in the latter.”) The circuits addressing the elements of a student’s sexual harassment claim based on hostile educational environment agree that the plaintiff must prove: (1) that the student belongs to a protected group; (2) that the student was subject to unwelcome sexual harassment; (3) that the harassment was based on sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of the student’s education and create an abusive educational environment; and (5) that some basis for institutional liability has been established. Kinman v. Omaha Public Sch. Dist., 94 F.3d 463, 467-68 (8th Cir.1996); Seamons v. Snow, 84 F.3d 1226, 1232 (10th Cir.1996); Davis v. Monroe County Bd. of Educ., 74 F.3d 1186 (11th Cir.1996), vacated, pending reh’g en banc; Murray v. New York Univ. College of Dentistry, 57 F.3d 243 (2d Cir.1995). A majority of those circuits have held that in order to establish the fifth element — viz., that there is a basis for the educational institution’s liability — Title VII principles apply: (1) The plaintiff must show that the school knew or should have known of the harassment in question and failed to take prompt remedial action; and (2) the student can satisfy the “knew or should have known” requirement by demonstrating that adequate information concerning the harassment was communicated to management-level school employees or by showing that the pervasiveness of the harassment gives rise to a reasonable inference of knowledge or constructive knowledge. Kinman v. Omaha Sch. Dist., supra; Davis v. Monroe County Bd. of Educ., supra; Murray v. New York Univ. College of Dentistry, supra. Accord Doe v. Petaluma City Sch. Dist., 949 F.Supp. 1415 (N.D.Cal.1996); Patricia H. v. Berkeley Unified Sch. Dist., 830 F.Supp. 1288 (N.D.Cal.1993); Burrow v." }, { "docid": "1757059", "title": "", "text": "Educ., 74 F.3d 1186 (11th Cir.1996), vacated, pending reh’g en banc; Murray v. New York Univ. College of Dentistry, 57 F.3d 243 (2d Cir.1995). A majority of those circuits have held that in order to establish the fifth element — viz., that there is a basis for the educational institution’s liability — Title VII principles apply: (1) The plaintiff must show that the school knew or should have known of the harassment in question and failed to take prompt remedial action; and (2) the student can satisfy the “knew or should have known” requirement by demonstrating that adequate information concerning the harassment was communicated to management-level school employees or by showing that the pervasiveness of the harassment gives rise to a reasonable inference of knowledge or constructive knowledge. Kinman v. Omaha Sch. Dist., supra; Davis v. Monroe County Bd. of Educ., supra; Murray v. New York Univ. College of Dentistry, supra. Accord Doe v. Petaluma City Sch. Dist., 949 F.Supp. 1415 (N.D.Cal.1996); Patricia H. v. Berkeley Unified Sch. Dist., 830 F.Supp. 1288 (N.D.Cal.1993); Burrow v. Postville Community Sch. Dist., 929 F.Supp. 1193 (N.D.Iowa 1996); Bruneau v. South Kortright Central Sch. Dist., 935 F.Supp. 162 (N.D.N.Y.1996); Linson v. Trustees of the Univ. of Penn., 1996 WL 479532 (E.D.Pa.1996). The court in Seamons v. Snow, supra, disposed of the plaintiffs claim solely on the basis of his failure to allege facts constituting sexual discrimination without addressing the notice issue. That Title VII standards should be applied in analyzing a Title IX sexual harassment claim by a student is also evident from the decisions of the Supreme Court. Although the Court did not expressly address the issue in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), in holding that Title IX authorizes awards of compensatory damages to Title IX plaintiffs generally, the Court invoked Title VII authority and principles. Franklin involved a high school student’s allegations that she had been sexually harassed and assaulted by a teacher and that school officials with actual knowledge of the teacher’s misconduct had faded to intervene. Id., 503 U.S." }, { "docid": "1952359", "title": "", "text": "S.Ct. 3244, 3255, 82 L.Ed.2d 462 (1984). In addition, Iona’s prediction that colleges would begin monitoring their professors’ speech and teaching materials in an effort to avoid liability is unfounded. It is desirable that colleges will make efforts to educate their faculty about sexual harassment and implement effective sexual harassment policies. To the extent such efforts cause some incidental inconvenience to colleges and professors, that inconvenience is justified in light of the colleges’ legitimate goal of eradicating sexual harassment. Cf. id. (“[I]f enforcement of the [Minnesota Human Rights] Act causes some incidental abridgement of the Jaycees’ protected speech, that effect is no greater than is necessary to accomplish the State’s legitimate purpose.”). Thus, we hold that if a professor has a supervisory relationship over a student, and the professor capitalizes upon that supervisory relationship to further the harassment of the student, the college is liable for the professor’s conduct. If a professor does not rely upon his actual or apparent authority to carry out the harassment, the college will be liable only if it provided no reasonable avenue for complaint or if it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action. We pause to note that in Murray, we declined to decide to what extent a constructive notice standard should apply to cases arising under Title VII or Title IX. See 57 F.3d at 250. We have since held that notice under Title VII includes both actual and constructive notice. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir.1996). We now extend that holding to claims of hostile environment sexual harassment arising under Title IX. See Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463, 469 (8th Cir.1996); Lipsett, 864 F.2d at 901; Petaluma City Sch. Dist., 949 F.Supp. at 1426, 61 Fed.Reg. 52172, 52173; cf. Doe v. Claiborne County, 103 F.3d 495, 504-05, 515-16 (6th Cir.1996) (reversing district court’s exclusion of plaintiffs “knew or should have known” evidence from Title IX claim). B. Application of Standard 1. Abuse of Authority It" }, { "docid": "21873", "title": "", "text": "school student. Indiana Administrative Code provides that \"elementary school means any combination of grades kindergarten (K) through eight (8).” 511 IAC 6-1-1. As an eighth grader, Diane M. was an elementary school student at the time of the events in question. We decline to opine, however, on whether secondary school students can welcome sexual advances in harassment claims arising under Title IX. . Courts recognize at least two types of sexual harassment. The first, called \"quid pro quo\" harassment, occurs when the receipt of benefits or the maintenance of the status quo is conditioned on acquiescence to sexual advances. Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463, 467 (8th Cir.1996). The second, called \"hostile environment” harassment, occurs when unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct have the purpose or effect of unreasonably interfering with an individual's performance or creating an intimidating, hostile, or offensive environment. Id. Some district courts also recognize a third type of sexual harassment for Title DC purposes, called \"student-student\" or \"peer-to-peer” harassment, which occurs when students are subjected to a sexually hostile educational environment created by a fellow student or students when the supervising authorities knowingly fail to act to eliminate the harassment. See, e.g., Bruneau By and Through Schofield v. South Kortright Cent. Sch. Dist., 935 F.Supp. 162, 172 (N.D.N.Y.1996); Burrow v. Postville Community Sch. Dist., 929 F.Supp. 1193, 1205 (N.D.Iowa 1996). Plaintiff in this case bases her claims on a hostile environment theory of discrimination. We therefore have no occasion to rule on whether this Circuit will recognize a claim for peer-to-peer sexual harassment. . We note that Instruction No. 11 is also an incorrect statement of the law, as this Court in Smith declined to adopt a negligence standard of liability for imputing knowledge to an educational institution. See Smith, 128 F.3d 1014. Therefore element three of Judge Barker’s instruction, requiring that the school corporation knew or should have known of the alleged sexual advances or abuse, is erroneous." }, { "docid": "11005115", "title": "", "text": "harassment if it “knew or should have known” that the harassment was taking place. Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir.1996). In other words, if an employer fails to exercise reasonable care in learning of sexual harassment by employees, Title VII treats the employer as if it had actual notice of the harassment. As other courts have remarked, the constructive-notice standard is essentially grounded in negligence. See Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir.1990) (explaining that an employer’s liability for hostile-environment sexual harassment is based on “a negligence standard that closely resembles the ‘fellow servant’ rule” rather than on re-spondeat superior); Bruneau v. South Kortright Central School Dist., 935 F.Supp. 162, 173 (N.D.N.Y.1996) (refusing to use Title VII’s constructive-notice standard in a student-on-student Title IX harassment case because “[cjonstructive notice ... is, in essence, a negligence standard”). Although the school district may be somewhat less vulnerable under the constructive-notice standard than under the pure agency standard, we think that importing this aspect of Title VII law stretches Title IX beyond its language and purpose. Congress did not enact Title IX in order to burden federally funded educational institutions with open-ended negligence liability. In prohibiting employment discrimination, Title VII establishes limits on liability to ensure that private actions against employers do not become excessive. See 42 U.S.C. § 1981a (establishing monetary ceilings on compensatory damages for private actions brought under Title VII or under the Americans with Disabilities Act); 42 U.S.C. § 2000e-5 (setting out detailed procedures under Title VII for the EEOC and for private claimants, including a statute of limitations of less than one year). Employers have the benefit of detailed regulations that can help them avoid illegal employment practices. See 29 C.F.R. Pts. 1600-1691. Title VII regulations state forthrightly that “an employer ... is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment....” 29 C.F.R. § 1604.11. Title IX, by contrast, does not create any administrative body to regulate private claimants’ rights, and the regulations promulgated under Title IX make no mention" }, { "docid": "11420204", "title": "", "text": "1232; Wright, 940 F.Supp. at 1420; and (4) the school district knew of the harassment and intentionally failed to take proper remedial action, see, e.g., Wright, 940 F.Supp. at 1420; Bosley, 904 F.Supp. at 1023. The court finds that this standard, comparable to the moderate approaches discussed supra that have been adopted by other courts, best resolves the competing concerns relevant to school district liability under Title IX in the peer sexual harassment context. The requirement that a Title IX violation be “intentional” has generated some disagreement among courts. Several courts have simply chosen not to define specifically what is required to show an intentional violation. See, e.g., Collier, 956 F.Supp. at 1214. Other courts have stated merely that, to be intentional, the wrongful conduct must be “on the basis of sex.” See Wright, 940 F.Supp. at 1419-20; Bosley, 904 F.Supp. at 1023, 1025. The Rowinsky court has interpreted the intentionality requirement to mean that the district must have treated complaints by girls differently than complaints by boys. See 80 F.3d at 1016. However, the Rowinsky approach has been sharply criticized by other courts. See, e.g., Petaluma, 949 F.Supp. at 1421 (“Rowinsky is manifestly based on a fundamental misunderstanding of the nature of this type of claim.”). This court is persuaded by the reasoning of those courts that have interpreted this requirement to mean that, to be held hable, a school district must have intended to create a hostile educational environment for the plaintiff. See Petaluma, 949 F.Supp. at 1426; see also Burrow, 929 F.Supp. at 1205. In the court’s judgment, such an approach best advances Congress’s goal of providing a meaningful remedy for a school district’s intentional failure to provide a safe, non-hostile, and non-discriminatory educational environment while not exposing the public fisc to limitless monetary liability for the uncondoned acts of students. The court grants the District’s Rule 12 motion with respect to the Title IX claims of Mother and Father Doe but denies the District’s motion with respect to Jane’s Title IX claim. B. The Summary Judgment Motion The court next considers the District’s motion for summary" }, { "docid": "11420202", "title": "", "text": "are: (1) that she is a member of a protected group; (2) that she was subject to unwelcome sexual harassment; (3) that the harassment was based on sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of her education and create an abusive educational environment; and (5) that some basis for institutional liability has been established. Davis, 74 F.3d at 1194. The court noted that institutional liability could be established by either actual or constructive notice. See id. In Petaluma, the court took a similar approach, holding that: [T]he standard applicable to this action is the traditional Title VII hostile environment standard. Thus, the elements which Plaintiff must prove are that Plaintiff was subjected to unwelcome harassment based on her gender, that the harassment was so severe or pervasive as to create a hostile educational environment, and that the Defendants knew, or should in the exercise of their duties have known, of the hostile environment and failed to take prompt and appropriate remedial action. Petaluma, 949 F.Supp. at 1427. The court rejects the District’s contention that peer sexual harassment is never actionable against a school district under Title IX. Having considered Congress’s intent with respect to Title IX, the ease law developing Title IX, OCR’s regulations regarding peer sexual harassment, and the approaches of the other courts to consider this issue, the court is persuaded that, under some circumstances, a school district’s failure to curtail peer sexual harassment may be actionable under Title IX. The court holds that Jane must show the following factors to prevail on her Title IX claim: (1) the plaintiff was a student in an educational program or activity receiving federal financial assistance within the coverage of Title IX, see, e.g., Bosley, 904 F.Supp. at 1023; (2) the plaintiff was subjected to unwelcome sexual harassment while a participant in the program, see, e.g., Bosley, 904 F.Supp. at 1023; (3) the harassment was sufficiently severe or pervasive that it altered the conditions of the plaintiffs education and created a hostile or abusive educational environment, see, e.g., Seamons, 84 F.3d at" }, { "docid": "3170662", "title": "", "text": "and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Ellison, 924 F.2d at 875-76 (footnote omitted). The court held that the severity and pervasiveness of the sexual harassment should be assessed from the perspective a reasonable victim (who is generally a reasonable woman). Id., 924 F.2d at 878-79. The Ninth Circuit noted that employers are not strictly liable for harassment by their employees. Rather, they are liable “for failure to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.” Id., 924 F.2d at 881 (quoting E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1515-16 (9th Cir.1989)). The court held that when co-worker sexual harassment is alleged, the employer must take action “reasonably calculated to end the harassment,” Id., 924 F.2d at 882 (quoting Katz v. Dole, 709 F.2d 251, 256 (4th Cir.1983)). The court continued: [T]he reasonableness of an employer’s remedy will depend on its ability to stop harassment by the person who engaged in harassment. In evaluating the adequacy of the remedy, the court may also take into account the remedy’s ability to persuade potential harasses to refrain from unlawful conduct. Id. (footnote omitted). Courts that have addressed the question of whether students may bring hostile environment claims under Title IX have addressed the question in the context of alleged harassment by teachers. These courts have come to different conclusions about whether Title IX supports a hostile environment claim. For example, the district court in Bougher v. University of Pittsburgh, 713 F.Supp. 139, 145 (W.D.Pa.1989), aff'd on other grounds, 882 F.2d 74, 77 (3rd Cir.1989), held that it would not recognize a hostile environment claim under Title IX absent additional congressional or administrative direction. In Patricia H. v. Berkeley Unified Sch. Dist., 830 F.Supp. 1288 (N.D.Cal.1993), however, Judge Orrick of this district held that a hostile environment sexual harassment claim may be brought under Title IX by a student for alleged harassment by a teacher. In reaching that conclusion, Judge" }, { "docid": "11005114", "title": "", "text": "as John Contreras. Doe v. Taylor Indep. School Dist., 975 F.2d 137, 149 (5th Cir.1992), cert. denied, 506 U.S. 1087, 113 S.Ct. 1066, 122 L.Ed.2d 371 (1993). That said, we cannot take liberties with statutory language or with the reasoning of the Supreme Court. Franklin’s single citation to Meritor Savings to support the Court’s conclusion that sexual harassment is sex discrimination does not by itself justify the importation of other aspects of Title VII law into the Title IX context. We can find nothing in Franklin to support the trial court’s theory that Title IX can make school districts liable for monetary damages when the district itself engages in no intentional discrimination. There is nothing to suggest that Congress intended such a sweeping liability. More to the point, there is nothing to give notice to the recipient of federal funds that the funds carry the strings of such liability. To ignore this reality is to ignore that Congress acted here under the spending power. Under Title VII law, an employer has constructive notice of sexual harassment if it “knew or should have known” that the harassment was taking place. Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir.1996). In other words, if an employer fails to exercise reasonable care in learning of sexual harassment by employees, Title VII treats the employer as if it had actual notice of the harassment. As other courts have remarked, the constructive-notice standard is essentially grounded in negligence. See Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir.1990) (explaining that an employer’s liability for hostile-environment sexual harassment is based on “a negligence standard that closely resembles the ‘fellow servant’ rule” rather than on re-spondeat superior); Bruneau v. South Kortright Central School Dist., 935 F.Supp. 162, 173 (N.D.N.Y.1996) (refusing to use Title VII’s constructive-notice standard in a student-on-student Title IX harassment case because “[cjonstructive notice ... is, in essence, a negligence standard”). Although the school district may be somewhat less vulnerable under the constructive-notice standard than under the pure agency standard, we think that importing this aspect of Title VII law stretches" }, { "docid": "1952360", "title": "", "text": "no reasonable avenue for complaint or if it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action. We pause to note that in Murray, we declined to decide to what extent a constructive notice standard should apply to cases arising under Title VII or Title IX. See 57 F.3d at 250. We have since held that notice under Title VII includes both actual and constructive notice. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir.1996). We now extend that holding to claims of hostile environment sexual harassment arising under Title IX. See Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463, 469 (8th Cir.1996); Lipsett, 864 F.2d at 901; Petaluma City Sch. Dist., 949 F.Supp. at 1426, 61 Fed.Reg. 52172, 52173; cf. Doe v. Claiborne County, 103 F.3d 495, 504-05, 515-16 (6th Cir.1996) (reversing district court’s exclusion of plaintiffs “knew or should have known” evidence from Title IX claim). B. Application of Standard 1. Abuse of Authority It is undisputed that the incidents of harassment occurred while Pallett and Kracunas were students in Palma’s classes. Therefore, Palma had supervisory authority over them at the time he embarked upon the harassment. In addition, a factfinder could find that (1) Palma gave Pallett an “F” on her paper as a ruse to lure her to his office to further his sexual designs; (2) he made an appointment for Pallett to come to his office as a means to further these sexual designs; (3) he used his professorial authority to provide Pallett with a final grade of “C”, perhaps to thank her for submitting to his abuse, perhaps to buy her silence, or perhaps to induce her to further submission; (4) he used his authority as Kracunas’s professor to assign her special reading, which could be found to have been a device to initiate sexual harassment; and (5) he exploited his professorial authority by asking Kracunas to come with him to his office to retrieve reading material and then harassing her. In sum, there is evidence" }, { "docid": "11420194", "title": "", "text": "the sexual harassment of one student by another. Several other federal courts have considered this issue. See Seamons v. Snow, 84 F.3d 1226 (10th Cir.1996); Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006 (5th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 165, 136 L.Ed.2d 108 (1996); Davis v. Monroe County Bd. of Educ., 74 F.3d 1186 (11th Cir.1996), vacated & reh’g en banc granted, 91 F.3d 1418 (11th Cir.1996); Piwonka ex rel. v. Tidehaven Indep. Sch. Dist., 961 F.Supp. 169 (S.D.Tex.1997); Collier ex rel. Collier v. William Penn Sch. Dist., 956 F.Supp. 1209 (E.D.Pa.1997); Franks v. Kentucky Sch. for the Deaf, 956 F.Supp. 741 (E.D.Ky.1996); Doe ex rel. Doe v. Petaluma City Sch. Dist., 949 F.Supp. 1415 (N.D.Cal.1996); Wright ex rel. Wright v. Mason City Community Sch. Dist., 940 F.Supp. 1412 (N.D.Iowa 1996); Linson v. Trustees of the Univ. of Pa., No. 95-3681, 1996 WL 479532 (E.D.Pa. Aug.21, 1996); Bruneau ex rel. Schofield v. South Kortright Cent. Sch. Dist., 935 F.Supp. 162 (N.D.N.Y.1996); Burrow ex rel. Burrow v. Postville Community Sch. Dist., 929 F.Supp. 1193 (N.D.Iowa 1996); Bosley v. Kearney R-1 Sch. Dist., 904 F.Supp. 1006 (W.D.Mo.1995); Kate S. ex rel. Oona R.-S. v. Santa Rosa City Schs., 890 F.Supp. 1452 (N.D.Cal.1995); Garza v. Galena Park Indep. Sch. Dist., 914 F.Supp. 1437 (S.D.Tex.1994). Nearly all courts to have considered the issue have concluded that, under some conditions, school districts may be liable for failing to respond to a hostile educational environment created by peer sexual harassment. See, e.g., Seamons, 84 F.3d at 1232; Rowinsky, 80 F.3d at 1016; Wright 940 F.Supp. at 1420; Bruneau, 935 F.Supp. at 174; see also Garza, 914 F.Supp. at 1438 (finding no Title IX cause of action for peer sexual harassment, but effectively overruled by Rowinsky). However, the standards for establishing liability vary from court to court. Compare Rowinsky, 80 F.3d at 1016, with Davis, 74 F.3d at 1194-95. In determining what the appropriate standard for liability is in a Title IX claim for peer sexual harassment, the court will review and weigh the policies and approaches considered by other courts that have" } ]

[ { "docid": "14507032", "title": "", "text": "enjoy all of the exclusive territorial benefits which the National Hockey League affords. As a member team, it will continue cooperating with the defendants in pursuit of its main purpose, i. e:, producing sporting events of uniformly high quality appropriately scheduled as to both time and location so as to assure all members of the league the best financial return. In this respect, the plaintiff and defendants are acting together as one single business enterprise, competing against other similarly organized professional leagues. The main thrust of the Sherman Act is to prohibit some competitors from combining with other competitors to gain a competitive advantage over other competitors by creating impermissible restraints upon trade or commerce. It is fundamental in a section 1 violation that there must be at least two independent business entities accused of combining or conspiring to restrain trade. Six Twenty-Nine Productions, Inc. v. Rollins Telecasting, Inc., 365 F.2d 478, 484 (5th Cir. 1966); Stewart v. Hevelone, 283 F.Supp. 842, 845 (D.Neb.1968). Within the relevant market in which we are here concerned, plaintiff and defendants are not competitors in the economic sense. It is of course true that the member teams compete among themselves athletically for championship honors, and they may even compete economically, to a greater or lesser degree, in some other market not relevant to our present inquiry. But, they are not competitors in the economic sense in this relevant market. They are, in fact, all members of a single unit competing as such with other similar professional leagues. Consequently, the organizational scheme of the National Hockey League, by which all its members are bound, imposes no restraint upon trade or commerce in this relevant market, but rather makes possible a segment of commercial activity which could hardly exist without it. In support of its position, plaintiff has relied upon the recent case of United States v. Topco Associates, Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972), a classic example of a horizontal allocation of exclusive territories as a per se section 1 violation. This was an injunction action brought by the United" } ]

[ { "docid": "6218929", "title": "", "text": "per se, freeing the court from the complicated task which follows the utilization of the rule of reason approach. See Northern Pac. Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). . It should be noted, however, that the court is not persuaded by the argument that the NBA, as a joint venture, is, immune from Sherman Act condemnation. Neither Levin v. National Basketball Association, 385 F.Supp. 149 (S.D.N.Y.1974) nor San Francisco Seals, Ltd. v. National Hockey League, 379 F.Supp. 966 (C.D.Cal.1974) concerned the prevention of competition for players. Moreover, both courts adhered to the proposition that the antitrust laws do apply to professional athletic leagues, regardless of joint venture status, and that joint action by members of a league can have antitrust implications. 385 F.Supp. at 152; 379 F.Supp. at 968, 970-71. Here, the relevant market is the competition for player services, the teams have agreed not to compete in that market and there exists an arguable anticomxjetitive purpose, effect and injury in that market. The other cases cited by the NBA for this “joint venture” exemption only hold that for certain purposes the league and its member clubs do not violate the antitrust laws when they act together. Those cases did not involve restraints geared to the elimination of competition for players. See United States v. National Football League, 116 F.Supp. 319 (E.D.Pa.1953) (restraints on telecasting of football games) ; American Football League v. National Football League, 205 F.Supp. 60 (D.Md.1962), aff'd, 323 F.2d 124 (4th Cir. 1963) (monopolization of major league professional football). Other cases merely involved venue requirements for bringing an antitrust action, Hawkins v. National Basketball Association, 288 F.Supp. 614 (W.D.Pa.1968) ; American Football League v. National Football League, 27 F.R.D. 264 (D.Md.1961), or the service of process, Erving v. Virginia Squires Basketball Club, 349 F.Supp. 709 (E.D.N.Y.1972). . COUNT THREE (Damages For Fraud) I JURISDICTION OF THE COURT 70. Cross-claimants’ claim arises out of the same facts alleged in support of COUNT ONE herein, and the jurisdiction of this Court is invoked under the doctrine of pendent jurisdiction." }, { "docid": "20111923", "title": "", "text": "but is nevertheless generally free to go from one unionized job to another. The professional, sports industry has a very different history and very different economic imperatives. Most professional sports leagues have always had some form of what has become known as the reserve system. See Flood v. Kuhn, 407 U.S. 258, 259 n. 1, 92 S.Ct. 2099, 2100 n. 1, 32 L.Ed.2d 728 (1972) (baseball); Robertson v. National Basketball Ass’n, 556 F.2d 682, 686 n. 6 (2d Cir.1977) (basketball); Mackey v. National Football League, 543 F.2d 606, 610 (8th Cir.1976) (football), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977); McCourt v. California Sports, Inc., 600 F.2d 1193, 1194 (6th Cir.1979) (hockey). As noted, this is a system by which the right to a player’s services becomes the property of a particular club with limited freedom for the player to seek employment with another club. The reserve system in one form or another has been used in major league baseball for over a century. Until the arbitration decision in 1976, the reserve system prevented players from offering their athletic services to competing teams. A player’s services were thus the property of a single team until he was traded or released. In enforcing a complete reserve system, Major League Baseball was exercising monopsony power — a buyer’s monopoly. However, there are many reasons, apart from maximizing the transfer of revenues from players to clubs, why reserve systems exist within professional sports. Fans might not be interested in games between teams that had entirely new lineups for every contest. Moreover, high quality play may require that individuals practice and play with the same teammates for at least some period of time. Teams may also want to recoup what they regard as training costs invested in players while they gained experience. In. antitrust litigation, the leagues perennially argue that some, form of reserve system is necessary for competitive balance. See Mackey, 543 F.2d at 611. Indeed, even in a system of complete free agency, one would expect to see many long-term agreements binding individual players to particular clubs. There" }, { "docid": "8642017", "title": "", "text": "and eliminates a judgment, review of which was prevented through happenstance. When that procedure is followed, the rights of all parties are preserved.... In this case the United States made no motion to vacate the judgment ... [and thus] did not avail itself of the remedy it had to preserve its rights. Id. at 40, 71 S.Ct. at 107. In Kapp, the NFL defendants’ cross-appeal on their antitrust liability under the rule of reason was dismissed when the Ninth Circuit upheld the lower court’s judgment that Kapp had failed to prove any damage as a result of defendants’ antitrust violation. As the Supreme Court suggested in Munsingwear, the NFL defendants could have asked the Ninth Circuit to vacate the trial court’s liability judgment in Kapp. The NFL defendants chose not to do so and the court thus concludes that the trial court’s determination in Kapp is relevant for purposes of determining whether the NFL defendants are collaterally estopped from relit-igating the issue of relevant market. Plaintiffs also contend that Smith v. Pro Football, Inc., 420 F.Supp. 738 (D.D.C. 1976), aff'd in part, rev’d in part, 593 F.2d 1173, 1183-87 (D.C.Cir.1978), supports the use of collateral estoppel on issue of the relevant market for player services. In Smith, a player challenged the NFL college draft under § 1 of the Sherman Act. The district court addressed and resolved the issue of what constitutes the relevant market under the rule of reason, finding it to be “the competition among the teams for the services of college players”. 420 F.Supp. at 746. In affirming the district court’s finding of a rule of reason violation, the Court of Appeals held that “the draft is anticompetitive in its effect on the market for players’ services, because it virtually eliminates economic competition among buyers for the services of sellers.” 593 F.2d at 1186. Examining the three cases cited by plaintiffs, the court determines that the NFL defendants should be precluded from relit-igating the determination that the services of major league professional football players in the United States constitutes a relevant market for purposes of plaintiffs’ claims." }, { "docid": "19699652", "title": "", "text": "of automotive air pollution control devices. No commercial interest of the crop farmers fails within this area. Not only were the crop farmers not targets of the alleged conspiracy, they were not even on the firing range. 481 F.2d at 129 (footnote omitted). The court went on to state that plaintiffs who fall within the target area would “include an alleged inventor and a manufacturer of motor vehicle air pollution control equipment who claim losses from asserted inability to market their devices.” Id. at 129 n.10. . Strictly speaking, the NFL teams are not engaged in a joint venture. “A joint venture is a joint business undertaking of two or more parties who share the risks as well as the profits of the business.” 10 Von Kalinowski, Antitrust Laws and Trade Regulation § 73.08[1], at 73- 165 (1977) (footnote omitted). Though the NFL teams share revenues, they do not share profits or losses. . The opinion of the Court of Appeals for the District of Columbia in Smith v. Pro Football, Inc., 193 U.S.App.D.C. 19, 593 F.2d 1173 (D.C. Cir. 1978, as amended on Jan. 31, 1979), illustrates the confusion surrounding the question whether NFL teams are economic competitors. In discussing whether to apply the per se or the rule of reason test of illegality under § 1 of the Sherman Act, the court flatly stated that “the NFL clubs which have ‘combined’ to implement the draft are not competitors in any economic sense. The clubs operate basically as a joint venture . . Slip opinion at 24-25, 593 F.2d at 1178-1179 (footnote omitted). Yet in applying the rule of reason to the NFL draft, the court held that the draft “is undeniably anticompetitive both in its purpose and in its effect.” Id. at 31, 593 F.2d at 1185. The court went on to say that: “The draft is anti-competitive in its effect on the market for players’ services, because it virtually eliminates economic competition among buyers [the NFL teams] for the services of sellers.” Id. at 32, 593 F.2d at 1186. . When a player signs a Standard Player" }, { "docid": "5781033", "title": "", "text": "and valuable draft choices at the Commissioner’s disposition, and thus were reluctant to sign a “free agent” unless they had succeeded in reaching an agreement with the player’s former team — an agreement which the former team, if it were recalcitrant, could preelude. These restraints, upon which we express no views here, are discussed in Mackey v. NFL, 543 F.2d 606 (8th Cir. 1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977); Kapp v. NFL, 390 F.Supp. 73 (N.D.Cal.1974), aff’d in part and appeal dismissed in part as moot, 586 F.2d 644 (9th Cir. 1978). In February 1977 the NFL clubowners and Players Association agreed to a new 5-year contract that works significant changes in the draft, Rozelle rule, option clause, and Standard Player Contract. See N.Y. Times, 18 Feb. 1977, at 21, col. 2; id., 26 Feb. 1977, at 15, col. 4. The modified draft is far less restrictive than the one described in the text; it continues for fewer rounds (thus applying to fewer players), eliminates the selecting team’s “perpetual” right of negotiation with its players, facilitates players’ becoming “free agents,” and establishes minimum salary levels for “rookies.” Relaxations are also introduced into the Rozelle rule (limiting it to “upper salary level” players), the option clause (making the option year salary 110% of the previous year’s and eliminating option clause after four seasons), and the Standard Player Contract (providing certain injury-protection guarantees). These modifications were noted favorably by the District Court in approving a settlement of the Mackey case. See Alexander v. NFL, No. 4-76-Civil 123 (D.Minn. 29 July 1977), slip op. at 26-28. We express no views on the legality of the modified NFL player draft, confining our attention to the draft as it existed in 1968. . NFL Constitution & By-Laws, Art. 15.1 (1968), reprinted in J.A. at 216-17. . See note' 6 supra. . See note 6 supra. . Clayton Act § 4, 15 U.S.C. § 15 (1976). . Professional football, like all professional sports excepting baseball, is subject to the antitrust laws. Compare Radovich v. NFL, 352 U.S. 445, 77" }, { "docid": "676135", "title": "", "text": "lies in the peculiar relationship among the NFL and its member clubs. It is by now a well-recognized principle of the rele vant caselaw (and the instant record does not demonstrate otherwise) that the members of a professional team sports league are more like “economic joint venturers” than competitors inter se. E. g., Smith v. Pro Football, Inc., supra; Mackey v. NFL, supra; Levin v. N. B. A., 385 F.Supp. 149 (S.D.N.Y.1974); San Francisco Seals, Ltd. v. N. H. L., 379 F.Supp. 966 (C.D.Cal.1974). This is not a case where sports league members — in competition with each other, e. g., for the services of players — concertedly impose restraints on those players, e. g., Smith v. Pro Football, Inc., supra. In short, because under these facts, the NFL teams are not economic competitors among themselves, their action does not fit the classic group boycott definition, at least as that has been articulated by Professor Sullivan. There is a substantial degree of judicial recognition, in antitrust cases, that the business structure of league team sports is unique. Smith v. Pro Football, Inc., supra; Kapp v. NFL, 390 F.Supp. 73, 79-81, 88-89 (N.D.Cal.1974); Philadelphia World Hockey Club, Inc. v. Philadelphia Hockey Club, Inc., 351 F.Supp. 462, 503-4 (E.D.Pa.1972); Flood v. Kuhn, 316 F.Supp. 271, 273-6 (S.D.N.Y.1970), aff’d., 443 F.2d 264 (2d Cir. 1971), aff’d., 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972); Molinas v. National Basketball Association, 190 F.Supp. 241, 243-4 (S.D.N.Y.1961); United States v. National Football League, 116 F.Supp. 319, 323-6 (E.D.Pa.1953); State of Milwaukee v. Milwaukee Braves, 31 Wis.2d 699, 144 N.W.2d 1, 10 (1966). These authorities indicate that the NFL should not be regarded as an association of economic competitors attempting to shield concerted anticompetitive behavior behind a joint venture facade. Cf. United States v. Topeo Associates, 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972). While neither the able presentations of counsel nor the Court’s own research has uncovered a case dealing with the type of restraint at issue here, so that the lawfulness of the NFL’s cross-ownership ban poses a question of first" }, { "docid": "19699653", "title": "", "text": "593 F.2d 1173 (D.C. Cir. 1978, as amended on Jan. 31, 1979), illustrates the confusion surrounding the question whether NFL teams are economic competitors. In discussing whether to apply the per se or the rule of reason test of illegality under § 1 of the Sherman Act, the court flatly stated that “the NFL clubs which have ‘combined’ to implement the draft are not competitors in any economic sense. The clubs operate basically as a joint venture . . Slip opinion at 24-25, 593 F.2d at 1178-1179 (footnote omitted). Yet in applying the rule of reason to the NFL draft, the court held that the draft “is undeniably anticompetitive both in its purpose and in its effect.” Id. at 31, 593 F.2d at 1185. The court went on to say that: “The draft is anti-competitive in its effect on the market for players’ services, because it virtually eliminates economic competition among buyers [the NFL teams] for the services of sellers.” Id. at 32, 593 F.2d at 1186. . When a player signs a Standard Player Contract with a team, he becomes bound to that team for a certain period of time. Once that period expires, however, he then may become a free agent and negotiate a new contract with another team. Mackey v. National Football League, 543 F.2d 606, 610 (8th Cir. 1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977). . Defendants cite San Francisco Seals, Ltd. v. National Hockey League, 379 F.Supp. 966 (C.D. Cal. 1974), and Levin v. National Basketball Association, 385 F.Supp. 149 (S.D.N.Y.1974), in support of their argument that they are members of a joint venture, and are not economic competitors. Both cases, however, merely held that the actions complained of did not have any anticompetitive effect, and both courts noted that joint action by members of a professional sports league can have antitrust implications. . The district court applied the rule of reason to Topco’s practices and held that they were procompetitive and thus reasonable because they promoted competition between the independents and the large chains. The Supreme Court rejected" }, { "docid": "19699654", "title": "", "text": "Contract with a team, he becomes bound to that team for a certain period of time. Once that period expires, however, he then may become a free agent and negotiate a new contract with another team. Mackey v. National Football League, 543 F.2d 606, 610 (8th Cir. 1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977). . Defendants cite San Francisco Seals, Ltd. v. National Hockey League, 379 F.Supp. 966 (C.D. Cal. 1974), and Levin v. National Basketball Association, 385 F.Supp. 149 (S.D.N.Y.1974), in support of their argument that they are members of a joint venture, and are not economic competitors. Both cases, however, merely held that the actions complained of did not have any anticompetitive effect, and both courts noted that joint action by members of a professional sports league can have antitrust implications. . The district court applied the rule of reason to Topco’s practices and held that they were procompetitive and thus reasonable because they promoted competition between the independents and the large chains. The Supreme Court rejected this finding, not because the Court questioned its validity, but because it found that the defendants had engaged in a clear allocation of territories and that therefore a per se violation of § 1 existed. As the Court put it, the inability of courts “to weigh, in any meaningful sense, destruction of competition in one sector of the economy against promotion of competition in another sector is one important reason we have formulated per se rules.” 405 U.S. at 609-10, 92 S.Ct. at 1134. . Another practice that is proscribed by the per se rule is the group boycott. E. g., Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963). A group boycott “is a concerted attempt by a group of competitors at one level to protect themselves from competition from non-group members who seek to compete at that level.” Smith v. Pro Football, Inc., slip opinion at 24 of 193 U.S.App.D.C., at 1178 of 593 F.2d (footnote omitted). With respect to section 3.1 of the NFL’s Constitution" }, { "docid": "8642034", "title": "", "text": "1351, 1358-59 (D.Minn.1991) (holding only in McNeil). . The NFL defendants specifically proposed to \"eliminate all ... individual player bargaining and ... establish a League-wide wage scale.” . On February 1, 1989, the NFL defendants implemented Plan B without the approval of either the players or the NFLPA. . The member clubs have all entered into contracts with players for the 1993 season. According to defendants’ records, at least 370 players have signed contracts for the 1993 season, 69 players have signed for the 1994 season, 22 players have signed contracts for the 1995 season and 2 players have signed contracts for the 1996 season. . Based on its determination that neither side is entitled to summary judgment on Count II, the court does not address defendants' contentions that plaintiffs’ claims in Count II should be judged under the rule of reason, that plaintiffs fail to carry their burden under that rule or that defendants’ proffered justification, the promotion of competitive balance among member teams, creates a genuine issue of material fact. . Commissioner Tagliabue also makes various other assertions concerning the structure and operation of the league in his attempt to demonstrate that the NFL member clubs constitute a joint venture. . The court notes that defendants’ position has also been implicitly rejected in all of the other cases that have found that various NFL player restraints violate section 1 of the Sherman Act, including the Eighth Circuit’s decision in Mackey v. National Football League, 543 F.2d 606 (8th Cir.1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977), the District of Columbia Circuit’s decision in Smith v. Pro Football, Inc., 593 F.2d 1173 (D.C.Cir.1978), and the district court’s decision in Kapp v. National Football League, 390 F.Supp. 73 (N.D.Cal.1974), aff'd in part, dismissed in part as moot, 586 F.2d 644 (9th Cir.1978), cert. denied, 441 U.S. 907, 99 S.Ct. 1996, 60 L.Ed.2d 375 (1979). In Mackey, the Eighth Circuit expressly held that NFL player restraints similar to those challenged in the present case were unlawful under section 1 of the Sherman Act. Id. at 620-23." }, { "docid": "7220265", "title": "", "text": "Sherman Act has been held applicable to professional sports teams by numerous lesser federal courts. See, e.g., Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 141-42, 88 S.Ct. 1981, 1985-86, 20 L.Ed.2d 98 (1968); Timken Roller Bearing Co. v. United States, 341 U.S. 593, 598, 71 S.Ct. 971, 974, 95 L.Ed. 1199 (1951); Radovich v. National Football League, 352 U.S. 445, 449-52, 77 S.Ct. 390, 392-94, 1 L.Ed.2d 456 (1957); Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963); Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945); Linseman v. World Hockey Association, 439 F.Supp. 1315 (D.Conn.1977); Robertson v. National Basketball Association, 389 F.Supp. 867 (S.D.N.Y.1975); Philadelphia World Hockey Club Inc. v. Philadelphia Hockey Club, Inc., 351 F.Supp. 462 (E.D.Pa.1972); Smith v. Pro-Football, Inc., 593 F.2d 1173 (D.C.Cir.1978); Mackey v. NFL, 543 F.2d 606 (8th Cir. 1976), cert. denied, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977); Los Angeles Memorial Coliseum Commission v. NFL, (“Coliseum II”), 484 F.Supp. 1274 (C.D.Cal.), rev’d on other grounds, 634 F.2d 1197 (9th Cir. 1980); Los Angeles Memorial Coliseum v. NFL,(“Coliseum I”), 468 F.Supp. 154, 164 (C.D.Cal.1979); Bowman v. NFL, 402 F.Supp. 754 (D.Minn.1975); Kapp v. NFL, 390 F.Supp. 73 (N.D.Cal.1974), appeal vacated, 586 F.2d 644 (9th Cir. 1978), cert. denied, 441 U.S. 907, 99 S.Ct. 1996, 60 L.Ed.2d 375 (1979). Cf. San Francisco Seals Ltd. v. National Hockey League, 379 F.Supp. 966 (C.D.Cal.1974); Levin v. National Basketball Association, 385 F.Supp. 149 (S.D.N.Y.1974). We are unpersuaded by the efforts of the district judge to distinguish these cases from the present one. Although many involved player relations or playing sites, which affect competition between member teams, at least one raised issues between leagues. In Radovich v. National Football League, supra, the issue was whether an NFL boycott of a player who had previously accepted employment with a competing pro-football league, the All America Conference, violated § 1 of the Sherman Act. The Court held in Radovich that it did, even though that boycott might not, in the words" }, { "docid": "7220261", "title": "", "text": "with individual NASL teams for the consumer’s dollar in their respective localities, the district court nevertheless concluded that this NFL team-member versus NASL team-member competition is subsumed in league versus league competition in the general entertainment market, which he described as “the primary economic competition in professional sports,” 505 F.Supp. at 678, stating that in all relevant markets the competition is “between two single economic entities uncomplicated by any relevant competition between the member clubs of a league,” id. at 685. Decisions rejecting sports leagues’ contentions that they should be treated as “single economic entities” were distinguished on the ground that they involved different types of markets in which the members of a sports league were competing individually against each other (e.g., for players’ services, hiring availability and terms, reserve clauses, college drafts, etc.), whereas here the court considered them to act monolithically as one joint enterprise. Supreme Court decisions in non-sports antitrust cases rejecting arguments that business trade restraints were justified on the ground that two or more participants had acted as a joint venture or “single business entity,” e.g., Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951), and Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968), were distinguished on the ground those combinations, unlike sports leagues, were unnecessary to the successful production and marketing of the product involved, the district judge here stating, “No interdependence or joint action is necessary to make a bearing or a muffler.” 505 F.Supp. at 686. Because individual teams acting alone could not produce “Pro Football,” Judge Haight reasoned, the combination of those teams through the NFL was justified by its “dominant purpose,” the production of the league sport, and was legal under Timken and Perma Life. For the same reason the judge refused to apply the rule of reason as articulated in National Society of Professional Engineers v. United States, 435 U.S. 679, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978). Judge Haight further concluded that, while a sports ownership capital market may exist" }, { "docid": "8642035", "title": "", "text": "also makes various other assertions concerning the structure and operation of the league in his attempt to demonstrate that the NFL member clubs constitute a joint venture. . The court notes that defendants’ position has also been implicitly rejected in all of the other cases that have found that various NFL player restraints violate section 1 of the Sherman Act, including the Eighth Circuit’s decision in Mackey v. National Football League, 543 F.2d 606 (8th Cir.1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977), the District of Columbia Circuit’s decision in Smith v. Pro Football, Inc., 593 F.2d 1173 (D.C.Cir.1978), and the district court’s decision in Kapp v. National Football League, 390 F.Supp. 73 (N.D.Cal.1974), aff'd in part, dismissed in part as moot, 586 F.2d 644 (9th Cir.1978), cert. denied, 441 U.S. 907, 99 S.Ct. 1996, 60 L.Ed.2d 375 (1979). In Mackey, the Eighth Circuit expressly held that NFL player restraints similar to those challenged in the present case were unlawful under section 1 of the Sherman Act. Id. at 620-23. Although the Eighth Circuit noted that the NFL member clubs were not business competitors in the traditional sense, and therefore rejected application of the per se rule, id. at 619, the court nevertheless found that the challenged restraint violated section 1 under the rule of reason, thus implicitly determining that the NFL member clubs were capable of conspiring for purposes of the Sherman Act. Id. at 620-22. . The court also observes that not all of the NFL defendants seem to agree with his characterization. For example, Val Davis, principal owner of the defendant Los Angeles Raiders, recently testified in this case that the NFL member clubs are \"vicious competitors,” a statement consistent with the position that he took in the Los Angeles Memorial Coliseum Commission case. . The facts on which those cases relied include: 1.The NFL is organized as an unincorporated association of 28 separately owned professional football teams, each operated through a distinct corporation or partnership. See Los Angeles Memorial Coliseum Comm'n, 726 F.2d at 1389-90; North American Soccer League, 670 F.2d" }, { "docid": "19699636", "title": "", "text": "that they are not economic competitors for purposes of § 1 of the Sherman Act. In Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951), the defendant companies attempted to justify the challenged restraints of trade by characterizing their operations as a joint venture. The Supreme Court rejected this argument: 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. Id. at 598, 71 S.Ct. at 975. Since the NFL teams are legally separate companies, the Supreme Court’s reasoning would arguably apply to this case. The court concludes that competition for players and, depending on a team’s location, competition for fans, indicates that the NFL teams are economic competitors, though not in the traditional sense. This view is supported by a number of cases where courts have held that the rules of a professional sports league violated § 1 of the Sherman Act. In reaching that conclusion, these courts necessarily found that the teams making up the league were engaged in economic competition. Smith v. Pro Football, Inc., supra; Mackey v. National Football League, supra; Kapp v. National Football League, supra; Denver Rockets v. All-Pro Management, Inc., 325 F.Supp. 1049, 1056-57 (C.D.Cal.1971), stay vacated sub nom., Haywood v. National Basketball Association, 401 U.S. 1204, 91 S.Ct. 672, 28 L.Ed.2d 206 (1971) (Douglas, J., in chambers). See Robertson v. National Basketball Association, 389 F.Supp. 867, 893-96 & 67 F.R.D. 691, 694 n.3 (S.D.N.Y.1975); Nassau Sports v. Hampson, 355 F.Supp. 733 (D.Minn.1972); Boston Professional Hockey Association, Inc. v. Cheevers, 348 F.Supp. 261, 267 (D.Mass.), remanded, 472 F.2d 127 (1st Cir. 1972). B. Sherman Act § 1 Analysis Section 1 of the Sherman Act, 15 U.S.C. § 1, in relevant part provides: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States ..." }, { "docid": "8642012", "title": "", "text": "Whether there are any procedural opportunities available to defendants in the second action that were not available to them in the first action of a “kind that might be likely to cause a different result.” Id. at 331-32, 99 S.Ct. at 651-52. The court will examine each of the issues in light of that standard. A. The Existence of A Relevant Market for the Services of Major League Professional Football Players in the United States A relevant market is defined generally as “the area of effective competition” and contains both a product element, determined by the availability and interchangeability of substitutes, and a geographic element, those areas in which the interchangeable substitutes are traded. Brown Shoe Co. v. United States, 370 U.S. 294, 324-28, 82 S.Ct. 1502, 1523-26, 8 L.Ed.2d 510 (1962). In the present case, plaintiffs challenge an agreement by defendants to restrain competition between member teams for the services of professional football players. Plaintiffs assert that the relevant market for the competitive impact of that challenged restraint is the market for services of major league professional football players in the United States. See First Amended Compl. n 41 & 49. Plaintiffs argue that defendants should be collaterally es-topped from relitigating the definition of that relevant market because at least three prior cases have fully litigated and resolved that issue against the NFL defendants. The first case on which plaintiffs rely is Mackey v. National Football League, in which the player plaintiffs successfully established that the “Rozelle Rule”, a restraint on free player movement that is a predecessor of the restraint challenged in the present case, was an unreasonable restraint of trade in violation of the Sherman Act. 407 F.Supp. 1000 (D.Minn.1975), aff'd in part, rev’d in part on other grounds, 543 F.2d 606 (8th Cir.1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977). In Mackey, this court expressly found that the appropriate relevant market was the market for professional football players’ services. Mackey, 407 F.Supp. at 1008. Examining whether that finding is entitled to preclusive effect, the court first determines that resolution of the" }, { "docid": "19699635", "title": "", "text": "a joint venture that is immune from the antitrust laws. In fact certain cooperative practices adopted by the NFL that unduly restrict competition for players have been struck down as violative of the antitrust laws. Smith v. Pro Football, Inc., 193 U.S.App.D.C. 19, 593 F.2d 1173 (D.C. Cir. 1978, as amended on Jan. 31, 1979) (NFL player draft held to be unreasonable restraint of trade in violation of § 1 of the Sherman Act); Mackey v. National Football League, 543 F.2d 606 (8th Cir. 1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977) (so-called “Rozelle Rule,” which had the effect of restricting the movement of free agents between teams, held unlawful); Kapp v. National Football League, 390 F.Supp. 73 (N.D.Cal. 1974), aff’d on other grounds, 586 F.2d 644 (9th Cir. 1978) (Rozelle Rule, NFL player draft, the “no tampering rule,” and the Standard Player Contract held violative of the antitrust laws). Furthermore, even if the court accepts the contention that the NFL teams are joint venturers, this does not necessarily mean that they are not economic competitors for purposes of § 1 of the Sherman Act. In Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951), the defendant companies attempted to justify the challenged restraints of trade by characterizing their operations as a joint venture. The Supreme Court rejected this argument: 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. Id. at 598, 71 S.Ct. at 975. Since the NFL teams are legally separate companies, the Supreme Court’s reasoning would arguably apply to this case. The court concludes that competition for players and, depending on a team’s location, competition for fans, indicates that the NFL teams are economic competitors, though not in the traditional sense. This view is supported by a number of cases where courts have" }, { "docid": "676134", "title": "", "text": "19 L.Ed.2d 1071 (1968), to the effect that “ ‘[u]nder the Sherman Act, any agreement by a group of competitors to boycott a particular buyer or group of buyers is illegal per se,’ ” id. (former emphasis added), and concluded that “[w]hatever other characterizations are possible, [] petitioners’ conduct may be viewed as ‘an organized boycott,’ Fashion Guild v. Trade Comm., 312 U.S. 457, 465, 61 S.Ct. 703, 85 L.Ed. 949 (1941) ... [in that petitioner] induced its competitors to refuse to deal on any terms with its customers.” Id. at 2931 (emphasis added). The Supreme Court’s focus in the St. Paul case appears to have been on whether the members of the boycotting group were competitors inter se, rather than on whether their action was aimed at harming competitors. In this sense, the Supreme Court’s view of the classic group boycott may be somewhat broader than Professor Sullivan’s, but under either approach a crucial element is agreement among competitors. The problem with applying the “classic group boycott” label to the facts of this case lies in the peculiar relationship among the NFL and its member clubs. It is by now a well-recognized principle of the rele vant caselaw (and the instant record does not demonstrate otherwise) that the members of a professional team sports league are more like “economic joint venturers” than competitors inter se. E. g., Smith v. Pro Football, Inc., supra; Mackey v. NFL, supra; Levin v. N. B. A., 385 F.Supp. 149 (S.D.N.Y.1974); San Francisco Seals, Ltd. v. N. H. L., 379 F.Supp. 966 (C.D.Cal.1974). This is not a case where sports league members — in competition with each other, e. g., for the services of players — concertedly impose restraints on those players, e. g., Smith v. Pro Football, Inc., supra. In short, because under these facts, the NFL teams are not economic competitors among themselves, their action does not fit the classic group boycott definition, at least as that has been articulated by Professor Sullivan. There is a substantial degree of judicial recognition, in antitrust cases, that the business structure of league team sports" }, { "docid": "19699634", "title": "", "text": "are not shared. The teams compete for college players and NFL players who are “free agents.” This competition for players has an economic aspect because winning teams may bring in more revenue. Depending on their proximity, teams also may compete for fans. If another NFL team were to play its home games in the Coliseum, that team and the Rams would compete to some extent for fan support in the Southern California area and thus for ticket sales and other revenue. At present, the location of the San Francisco Forty-niners vis-a-vis the Oakland Raiders, the location of the Baltimore Colts vis-a-vis the Washington Redskins, and the location of the New York Jets vis-a-vis the New York Giants, suggests that these pairs of teams compete for dollars found in the pockets of football fans. Moreover, the fact that NFL teams cooperate or act concertedly in a number of significant ways is ambiguous evidence on the question whether they are economic competitors. These cooperative efforts may indicate the presence of antitrust violations rather than the existence of a joint venture that is immune from the antitrust laws. In fact certain cooperative practices adopted by the NFL that unduly restrict competition for players have been struck down as violative of the antitrust laws. Smith v. Pro Football, Inc., 193 U.S.App.D.C. 19, 593 F.2d 1173 (D.C. Cir. 1978, as amended on Jan. 31, 1979) (NFL player draft held to be unreasonable restraint of trade in violation of § 1 of the Sherman Act); Mackey v. National Football League, 543 F.2d 606 (8th Cir. 1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977) (so-called “Rozelle Rule,” which had the effect of restricting the movement of free agents between teams, held unlawful); Kapp v. National Football League, 390 F.Supp. 73 (N.D.Cal. 1974), aff’d on other grounds, 586 F.2d 644 (9th Cir. 1978) (Rozelle Rule, NFL player draft, the “no tampering rule,” and the Standard Player Contract held violative of the antitrust laws). Furthermore, even if the court accepts the contention that the NFL teams are joint venturers, this does not necessarily mean" }, { "docid": "6218928", "title": "", "text": "overrule plaintiffs’ objection to class discovery is granted to the extent stated in this opinion. So ordered. . See Robertson v. National Basketball Association, 389 F.Supp. 867 (S.D.N.Y.1975). . In Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683 (1918), the Supreme Court stated the following approach to antitrust issues: “The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts.” Certain practices were found to be so anti-competitive, however, that they have been declared illegal per se, freeing the court from the complicated task which follows the utilization of the rule of reason approach. See Northern Pac. Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). . It should be noted, however, that the court is not persuaded by the argument that the NBA, as a joint venture, is, immune from Sherman Act condemnation. Neither Levin v. National Basketball Association, 385 F.Supp. 149 (S.D.N.Y.1974) nor San Francisco Seals, Ltd. v. National Hockey League, 379 F.Supp. 966 (C.D.Cal.1974) concerned the prevention of competition for players. Moreover, both courts adhered to the proposition that the antitrust laws do apply to professional athletic leagues, regardless of joint venture status, and that joint action by members of a league can have antitrust implications. 385 F.Supp. at 152; 379 F.Supp. at 968, 970-71. Here, the relevant market is the competition for player services, the teams have agreed not to compete in that market and there exists an arguable anticomxjetitive purpose, effect and injury in that market. The other cases" }, { "docid": "5781068", "title": "", "text": "Nebr. L.Rev. 335, 353 (1976) (arguing that NFL draft would be “reasonable” if it lasted for five rounds instead of 17). Cf. Mackey v. NFL, 543 F.2d 606, 622 (8th Cir. 1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977) (holding Rozelle rule “unreasonable,” inter alia, because it applied not just to better players, but “to every NFL player regardless of his status or ability”); Note, The Legality of the Rozelle Rule and Related Practices in the National Football League, 4 Ford.Urb.L.J. 581, 589-90 (1976) (arguing that Rozelle rule would be “reasonable” if it did not apply to “average” players). The NFL and its Players’ Association recently have adopted a less restrictive draft which “extends to fewer players by continuing for fewer rounds.” Alexander v. NFL, No. 4-76-Civil 123 (D.Minn. 29 July 1977), slip op. at 27 (approving settlement of Mackey case). See note 6 supra. The NFL suggests that a draft of fewer rounds would not have helped plaintiff, who was a first-round draft choice in 1968. See Brief of NFL at 50. Yet if the teams were forced to compete for the services of average players it is probable that those players’ salaries would rise, thus lifting the “floor” at which compensation for the most talented players, subject to the abbreviated draft, would have to begin. A “free market” for the services of most players, in short, would have pushed the salary levels of all players up. . See Note, 9 Conn.L.Rev. 336, 344-45 & n.55 (1977). . The Supreme Court in Professional Engineers, however, suggested that ethical norms designed to regulate competition, and marketing restraints relating to product safety, can be justified only if they “have no anticompetitive effect.” 435 U.S. at 696 n.22, 98 S.Ct. 1355 (emphasis added). See id. at 699, 98 S.Ct. 1355 (Blackmun, J., concurring). . 420 F.Supp. at 749. . Paragraph 12 of the Standard Player Contract signed by Smith and the Redskins provides: Any payments made hereunder to the Player, for a period during which he is entitled to workmen’s compensation benefits by reason of temporary total," }, { "docid": "8642018", "title": "", "text": "F.Supp. 738 (D.D.C. 1976), aff'd in part, rev’d in part, 593 F.2d 1173, 1183-87 (D.C.Cir.1978), supports the use of collateral estoppel on issue of the relevant market for player services. In Smith, a player challenged the NFL college draft under § 1 of the Sherman Act. The district court addressed and resolved the issue of what constitutes the relevant market under the rule of reason, finding it to be “the competition among the teams for the services of college players”. 420 F.Supp. at 746. In affirming the district court’s finding of a rule of reason violation, the Court of Appeals held that “the draft is anticompetitive in its effect on the market for players’ services, because it virtually eliminates economic competition among buyers for the services of sellers.” 593 F.2d at 1186. Examining the three cases cited by plaintiffs, the court determines that the NFL defendants should be precluded from relit-igating the determination that the services of major league professional football players in the United States constitutes a relevant market for purposes of plaintiffs’ claims. The court finds that all of the requirements for collateral estoppel have been met: the issue of what constitutes a relevant market in the present case is identical to the issue litigated in the prior cases, the resolution of the issue was necessary to the prior decisions, there was a final judgment on the merits against the NFL defendants in both Mackey and Smith, defendants in the present case were also defen dants in the prior cases and defendants had a full and fair opportunity to litigate the issue in both the Mackey and Smith cases. Based on the foregoing, the court concludes that the NFL defendants are collaterally estopped from relitigating the issue of the existence of a relevant market for the services of professional league football players in the United States. B. The Existence of A Relevant Market for Major League Professional Football In the United States Plaintiffs further allege that there is a relevant market for major league professional football in the United States that serves as the source of the NFL" } ]

[ { "docid": "18463531", "title": "", "text": "dress under Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c). A party asserting a claim of dilution bears a lighter burden than that required under Section 43(a): it is not necessary to demonstrate competition between the parties or a likelihood of confusion. See 15 U.S.C. § 1127. In order to prevail on its dilution claim under federal law, Clinique must demonstrate (1) ownership of a distinctive trade dress or famous mark, and (2) dilution. 15 U.S.C. § 1125(c). Dilution is defined as a “lessening of the capacity of a famous mark to identify and distinguish goods or services.” 15 U.S.C. § 1127. Though precise standards for analyzing dilution under Section 43(c) have not yet emerged, Section 43(c) “protects] famous trademarks from subsequent uses that blur the distinctiveness of the mark or tarnish or disparage it----” H.R.Rep. No. 374, 104th Cong., 1st Sess. 3 (1995) U.S.Code Cong. & Admin.News 1029, 1030 (emphasis added). This language mirrors the traditional New York dilution analysis, under which dilution can be founded upon a showing of either blurring or tarnishment. See, e.g., Hormel Foods Carp. v. Jim Henson Prods., Inc., 73 F.3d 497, 506 (2d Cir.1996); Deere & Co. v. MTD Prods., Inc., 41 F.3d 39, 42 (2d Cir. 1994). A. Ownership of Famous or Distinctive Trademark and Trade Dress Section 43(c) provides factors relevant to a determination of whether a mark or dress is distinctive or famous. As already noted in Parts III.2 and III.3, above, Clinique’s CLINIQUE & C mark and trade dress are distinctive for the purpose of an infringement claim under Section 43(a), and under the statutory factors, they are distinctive for purposes of Section 43(c) as well. B. Dilution by Tarnishment Tarnishment may occur when the plaintiffs mark is used by the defendant in association with unwholesome or shoddy goods or services. See, e.g., Hormel, 73 F.3d at 507; Deere, 41 F.3d at 43. Tarnishment may also result from an association with obscenity, or sexual or illegal activity, but is not limited to seamy conduct. See Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 467 F.Supp. 366 (S.D.N.Y.)," } ]

[ { "docid": "20332417", "title": "", "text": "under § 43(a) of the Lanham Act, to prevail on a claim for trademark infringement of an unregistered mark, a plaintiff must establish secondary meaning. See Allied Maint. Corp. v. Allied Mech. Trades, Inc., 42 N.Y.2d 538, 399 N.Y.S.2d 628, 369 N.E.2d 1162, 1164 n. 2 (1977) (“[S]ince a trade name or nontechnical trade-mark cannot claim the procedural advantages afforded a technical mark, it is necessary to show in an action for infringement that the name or mark has acquired a secondary meaning.” (citation omitted)); see also Camelot Assocs. v. Camelot Design & Dev. LLC, 298 A.D.2d 799, 750 N.Y.S.2d 155, 156 (2002) (“[W]ith respect to the trademark infringement claim, a plaintiff is required to [] show that the trade name has acquired a secondary meaning.”); Adirondack Appliance Repair, Inc. v. Adirondack Appliances Parts, Inc., 148 A.D.2d 796, 538 N.Y.S.2d 118, 120 (1989) (same). Because REI has failed to adduce evidence of secondary meaning, its common law trademark infringement claim fails as a matter of law. b.Dilution New York General Business Law § 360-1 provides that “[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 ... 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. Law § 360-1. However, the Second Circuit has held that “New York law accords protection against dilution to marks that are distinctive as a result of acquired secondary meaning as well as to those that are inherently distinctive.” N.Y. Stock Exch., Inc. v. N.Y., N.Y. Hotel LLC, 293 F.3d 550, 557 (2d Cir.2002) (citing Allied Maintenance Corp., 399 N.Y.S.2d 628, 369 N.E.2d at 1166); see also Gucci America, 868 F.Supp.2d at 241 (“To succeed on a claim for trademark dilution under New York General Business Law (“NY GBL”) § 360-1, a plaintiff must prove [] that it possesses a strong mark, one which has a distinctive quality or has acquired a secondary" }, { "docid": "23364975", "title": "", "text": "added). Section 368-d’s qualifying clause means exactly what its language denotes. Neither competition between the parties nor confusion about the source of products, Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 205 n. 8 (2d Cir.1979), appears to be necessary to state a cause of action for dilution. Allied, 42 N.Y.2d at 544-45, 399 N.Y.S.2d 628, 369 N.E.2d 1162. The purposes for which the statute was enacted lend further support to our view that confusion and direct competition are not necessary elements of an anti-dilution action under New York law. Section 368-d provides a cause of action distinct from other state law actions for trademark infringement and unfair competition. “The evil which the Legislature sought to remedy was not public confusion caused by similar products or services sold by competitors, but a cancer-like growth of dissimilar products or services which feeds upon the business reputation of an established distinctive trade-mark or name.” Allied, 42 N.Y.2d at 544, 399 N.Y.S.2d 628, 369 N.E.2d 1162; see R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 658 n. 14 (2d Cir.1979). The interest protected by § 368-d is not simply commercial goodwill, but the selling power that a distinctive mark or name with favor able associations has engendered for a product in the mind of the consuming public. See, Note, Trademark — § 368-d Dilution Relief in New York — Abandoning the Confusion/Competition Requirement, 46 Ford-ham L.Rev. 1315, 1323-24 (1978) (“Dilution Relief”). It is in this light that we analyze Sally Gee’s claim of dilution. To merit § 368-d protection a plaintiff must first possess a trademark or name which is “truly of distinctive quality” or one which has “acquired a secondary meaning in the mind of the public.” Allied, 42 N.Y.2d at 546, 399 N.Y.S.2d 628, 369 N.E.2d 1162 (“Allied” not sufficiently distinct to warrant protection); cf. Tiffany & Co. v. Tiffany Productions, Inc., 147 Misc. 679, 264 N.Y.S. 459 (N.Y.Sup. Ct.), aff’d, 237 A.D. 801, 260 N.Y.S. 821 (1st Dep’t 1932), aff'd, 262 N.Y. 482, 188 N.E. 30 (1933) (pre-§ 368-d case enjoining use of “Tiffany” by" }, { "docid": "5625566", "title": "", "text": "claims of false designation of origin and trademark infringement, including proof of actual confusion to recover damages, and proof of a likelihood of confusion for equitable relief.” W.W.W. Pharm. Co. v. Gillette Co., 984 F.2d 567, 576 (2d Cir.1993) (citation omitted) (unfair competition claim). Under New York common law, “an action for [trademark] infringement as well as an action for unfair competition both require a showing that the public is likely to confuse the defendant’s product or service with that of the plaintiff.” Allied Maint. Corp. v. Allied Mech. Trades, Inc., 42 N.Y.2d 538, 543, 399 N.Y.S.2d 628, 369 N.E.2d 1162 (1977). The “essence of unfair competition under New York common law is the bad faith misappropriation of the labors and expenditures of another, likely to cause confusion or to deceive purchasers as to the origin or the goods.” Jeffrey Milstein, 58 F.3d at 34 (citations omitted). For the reasons stated above with respect to GTFM’s Lanham Act claim, and because Solid has acted in bad faith, GTFM has also prevailed on its common law claims for trademark infringement and unfair competition with respect to Solid’s use of the “05” mark. B. GTFM’s State Law Dilution Claim Section 360 — Z of the New York General Business law 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. Law § 360-Z. “New York law accords protection against dilution to marks that are distinctive as a result of acquired secondary meaning as well as to those that are inherently distinctive.” N.Y. Stock Exch., Inc. v. New York, New York Hotel, LLC, 293 F.3d 550, 557 (2d Cir.2002). Thus, GTFM’s “05” trademark is eligible for antidilution protection under New York law. “Accordingly, the only question is whether there is a likelihood of dilution.” Id." }, { "docid": "3617369", "title": "", "text": "reasons, the Court finds a strong likelihood of confusion between plaintiffs’ products and the MCdT cigars. C. Dilution of the MONTECRISTO Trademark Plaintiffs claim that the MCdT Defendants’ use of counterfeits of CCB’s MON-TECRISTO trademark and their use of Monte Cristi Trade Names dilutes CCB’s MONTECRISTO trademark in violation of Lanham Act Section 43(c)(1), 15 U.S.C. § 1125(c)(1), (“Section 43(c)(1)”) and New York’s anti-dilution statute. Section 43(c)(1) entitles the owner of a famous mark, subject to a reasonableness review, to “an injunction against another person’s commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark, and to obtain such other relief as is provided in this subsection.” New York’s anti-dilution statute states, Likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name shall be 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 the goods or services. N.Y. Gen. Bus. Law § 368-d (repealed 1996, eff. Jan 1, 1997, current version at N.Y. Gen. Bus. Law § 360-l (1997)). In order to establish a dilution claim, plaintiffs must show (1) ownership of a distinctive or famous mark, and (2) a likelihood of dilution. See Hormel Foods Corporation, v. Jim Henson Productions, Inc., 73 F.3d 497, 506 (2d Cir.1996) (quoting Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 625 (2d Cir.1983)). 1. Ownership of Distinctive or Famous Mark In considering Section 43(c)(l)’s list of nonexclusive factors for determining adequacy of a mark’s fame or distinctiveness, the courts in this District have ruled that a mark found to be “strong” under the likelihood of confusion analysis is sufficiently famous or distinctive to receive protection from dilution. See Lexington Management Corp. v. Lexington Capital Partners, 10 F.Supp.2d 271, 289 (S.D.N.Y. 1998) (finding plaintiffs mark distinctive under Section 43(c)(1) based on finding of" }, { "docid": "8777145", "title": "", "text": "dress infringement. IX. New York General Business Law § 360-l Plaintiffs also bring a claim of dilution of trade dress under New York General Business Law § 360-1 (formerly § 368 — d). Section 360-1 states: 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. “This section applies with equal force to the protection of trade dress.” Merriam-Webster, Inc. v. Random House, Inc., 35 F.3d 65, 73 (2d Cir.1994). To prevail on this claim, Plaintiff must prove (1) that its trade dress is of “truly distinctive quality” or has acquired “secondary meaning,” and (2) that there is “likelihood of dilution.” Deere, 41 F.3d 39, 42 (2d Cir.1994); accord Fireman’s Ass’n of State of New York v. French Am. Sch. of New York, 41 A.D.3d 925, 928, 839 N.Y.S.2d 238, 241-42 (3d Dep’t 2007); see also New York Stock Exch., Inc. v. New York, New York Hotel LLC, 293 F.3d 550, 557 (2d Cir.2002) (“New York law accords protection against dilution to marks that are distinctive as a result of acquired secondary meaning as well as to those that are inherently distinctive.”). A likelihood of confusion is not a necessary element of this claim. See Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 624 (2d Cir.1983) (citing Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 544-45, 399 N.Y.S.2d 628, 369 N.E.2d 1162 (1977)). Courts have defined the likelihood of dilution as “either the blurring of a mark’s product identification or the tarnishment of the affirmative associations a mark has come to convey.” Deere, 41 F.3d at 42 (internal citation omitted). Here, Plaintiffs base their dilution claim on the contention that Defendants have opened a competing facility “with very similar trade dress [that] causes the Pure Power trade dress to lose its" }, { "docid": "11719943", "title": "", "text": "rather than the “misappropriation form of unfair competition,” it is still preempted under the federal copyright law. 1 Nimmer, § 1.01[B], 1-21. Accordingly, plaintiff’s sixth and seventh claims are dismissed. VII. Eighth Claim: Dilution Galerie Furstenberg alleges that “Defendants, through their sale of their counterfeit works, have diluted the distinctiveness and reputation of plaintiff’s trademarks, and have substantially diminished the value of such trademark.” (Complaint, 1172) N.Y. Gen.Bus.Law § 368-d (McKinney 1984) 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. Galerie Furstenberg’s claim under this statute must fail. “To merit § 368-d protection a plaintiff must first possess a trademark or name which is ‘truly of distinctive quality’ or one which has ‘acquired a secondary meaning in the mind of the public.’ ” Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 625 (2d Cir.1983) (quoting Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 546, 399 N.Y.S.2d 628, 369 N.E.2d 1162 (1977), emphasis in original); accord Warner Brothers, Inc. v. American Broadcasting Cos., Inc., 720 F.2d 231 (2d Cir. 1983). As discussed above, Galerie Fur-stenberg does not have a trademark in the Dali etchings and drawings. Accordingly, plaintiff’s claim for dilution is dismissed. VIII. Ninth Claim: False Advertising Galerie Furstenberg’s ninth claim states (Complaint, ¶ 80): Defendants failed to disclose material facts in making the above-mentioned representations in their advertisements promoting the sale of single works of fine art and multiples, in violation of N.Y. Gen.Bus.Law § 350 (McKinney 1968) [sic] and N.Y.C. Consumer Protection Law §§ 20-700 to 706 (1985). Section 350 of N.Y.Gen.Bus.Law (McKinney 1988) proscribes false advertising. To make out a claim under section 350 “a plaintiff is only required to demonstrate that the advertisement was misleading in a material respect and he was injured, while" }, { "docid": "19211759", "title": "", "text": "N.Y. Gen. Bus. Law § 360-k Plaintiffs bring a claim for trademark infringement under N.Y. Gen. Bus. Law § 360-k. “As with the Lanham Act, a plaintiff suing for trademark infringement under state law must prove that defendant’s use of the mark is likely to cause confusion, mistake or to deceive.” New Sensor Corp. v. CE Distrib. LLC, 303 F.Supp.2d 304, 317 (E.D.N.Y.2004) (internal citation and quotations omitted); accord Solow v. BMW (US) Holding Corp., No. 97 Civ. 1373(DC), 1998 WL 717613, at *2, 1998 U.S. Dist. LEXIS 16059, at *5 (S.D.N.Y. Oct. 13, 1998) (noting that a claim under § 360-k requires plaintiff to prove likelihood of confusion). Because, as discussed above, there is no likelihood of confusion, this claim is dismissed as a matter of law. f.Injury to Plaintiffs’ Business Reputation and Dilution To succeed on a claim under N.Y. Gen. Bus. Law § 360 — Z for trademark dilution, a plaintiff must prove “(1) that it possesses] a strong mark one which has a distinctive quality or has acquired a secondary meaning such that the trade name has become so associated in the public’s mind with the [plaintiff] that it identifies goods sold by that entity as distinguished from goods sold by others, and (2) a likelihood of dilution by either blurring or tarnishment.” Matter of Fireman’s Assn. of State of N.Y. v. French Am. School of N.Y., 41 A.D.3d 925, 928, 839 N.Y.S.2d 238, 242 (3d Dep’t 2007) (internal citations and quotations omitted). Here, there is no evidence in the record from which a reasonable jury could conclude that defendants’ website is likely to dilute plaintiffs’ trademark. Accordingly, this claim is dismissed. g.Claims Under N.Y. Gen. Bus. Law §§ 349 and 350 Plaintiffs claim defendants violated N.Y. Gen. Bus. Law §§ 349 and 350 by engaging in deceptive business practices, copyright infringement, consumer fraud, unfair competition, and false advertising. Section 349 prohibits generally “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service.” N.Y. Gen. Bus. Law § 349(a) (McKinney’s 2008). “A plaintiff under section 349" }, { "docid": "524807", "title": "", "text": "user, that are used to provide Internet search engines with information about the content of a website which then provides the basis for ranking and displaying the web site in the results of a search that is conducted for a word or term contained in a metatag. (Proposed Third Am. Compl. ¶ 23.) . Contrary to plaintiffs assertion, the \"use” requirement applies to all of plaintiff’s claims, including the claims asserted under New York law. As stated above, \"[t]he standard for trademark infringement under the Lanham Act is similar to the standard for analogous state law claims.” Merck & Co., 425 F.Supp.2d at 410 n. 6 (S.D.N.Y.2006). Although the Second Circuit has cautioned that \"it is not clear that [N.Y. Gen. Bus. Law § 360-1] is coextensive with [the Trademark Dilution Revision Act of 2006],” the \"use” requirement exists for plaintiff's proposed state law claims and is analyzed in the same manner as under the federal claims. Starbucks Corp. v. Wolfe's Borough Coffee, 477 F.3d 765, 766 (2d Cir.2007) (per curiam). Specifically, though N.Y. Gen. Bus. § 360-1 does not explicitly state \"use in commerce,” that statute requires infringement of a mark to receive injunctive relief for injury to business reputation or dilution. See N.Y. Gen. Bus. Law. § 360-1 (\"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.”). Infringement of a mark under state law requires use of the trademark, and the definition of \"use” under N.Y. Gen. Bus. Law § 360 mirrors the definition of \"use” in the Lanham Act. Compare N.Y. Gen. Bus. Law § 360(h) with 15 U.S.C. § 1127; see also Beverage Mktg. USA v. S. Beach Bev. Co., 20 A.D.3d 439, 799 N.Y.S.2d 242, 244 (2005) (\"A party asserting a claim for unfair competition predicated upon trademark infringement or dilution in violation of General Business Law §§ 360-k and 360-1 must show that the defendant's use of the trademark is likely to cause confusion or mistake about the source of" }, { "docid": "21499816", "title": "", "text": "81-86). The Court will address each in turn. A. Trademark Dilution Louis Vuitton’s principal claim is that MOB is liable for trademark dilution under the Lanham Act, 15 U.S.C. § 1125(c), and New York General Business Law § 360-i. The concept of trademark dilution has been described as a “subtle” one, Tiffany (NJ) Inc. v. eBay, Inc., 576 F.Supp.2d 463, 521-22 (S.D.N.Y.2008), aff'd in part, reversed in part on other grounds, and calls for some explanation. “When an individual encounters a mark (e.g., a word or symbol) in a store or watching a commercial, he or she can develop an association between a product or service and its corresponding quality, brand reputation, or origin.” 1A Lindey on Entertainment, Publishing and the Arts § 2:52.50 (3d ed., updated Jan. 2016). Anti-dilution laws protect those acquired associations from being diluted by other uses of a plaintiffs trademark. In particular, dilution by blurring — the claim that Louis Vuitton pursues here- — -refers to the gradual diminishment of a famous mark’s acquired “ability .. .-to clearly and unmis takably distinguish one source through unauthorized use.” Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 506 (2d Cir.1996) (alteration in original) (internal quotation marks omitted); see also Allied Maint. Corp. v. Allied Mech. Trades, Inc., 42 N.Y.2d 538, 544, 399 N.Y.S.2d 628, 369 N.E.2d 1162 (1977) (observing that New York law protects against the “gradual whittling away of a firm’s distinctive trade-mark or name”). In other words, “dilution occurs when the unauthorized use of a famous mark reduces the public’s perception that the mark signifies something unique, singular, or particular.” H.R. Rep. No. 109-23, at 4 (2005), as reprinted in 2006 U.S.C.C.A.N. 1091, 1092. The classic case of dilution by blurring involves an unrelated product coopt-ing a famous name or trademark as its own — “hypothetical anomalies” such “as Dupont shoes, Buick aspirin tablets, Schlitz varnish, Kodak pianos, Bulova gowns, and so forth.” Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 588 F.3d 97, 106 (2d Cir.2009) (‘‘Starbucks Corp. I”) (internal quotation marks omitted); see also Visa Int’l Serv. Ass’n v. JSL Corp.," }, { "docid": "20332418", "title": "", "text": "that “[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 ... 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. Law § 360-1. However, the Second Circuit has held that “New York law accords protection against dilution to marks that are distinctive as a result of acquired secondary meaning as well as to those that are inherently distinctive.” N.Y. Stock Exch., Inc. v. N.Y., N.Y. Hotel LLC, 293 F.3d 550, 557 (2d Cir.2002) (citing Allied Maintenance Corp., 399 N.Y.S.2d 628, 369 N.E.2d at 1166); see also Gucci America, 868 F.Supp.2d at 241 (“To succeed on a claim for trademark dilution under New York General Business Law (“NY GBL”) § 360-1, a plaintiff must prove [] that it possesses a strong mark, one which has a distinctive quality or has acquired a secondary meaning....”). Because REI cannot show that “Northeast” has acquired secondary meaning, its claim of dilution under New York law also fails. See Therapy Products, 623 F.Supp.2d at 495 (dismissing plaintiffs dilution claim at summary judgment where plaintiff was unable to establish any evidence of secondary meaning). c.Unfair Competition/Palming Off New York law has “long recognized two theories of common-law unfair competition: palming off and misappropriation.” ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 850 N.Y.S.2d 366, 880 N.E.2d 852, 858 (2007). Palming off refers to “the sale of the goods of one manufacturer as those of another,” while misappropriation encompasses the principle that one may not in bad faith “misappropriate the results of the skill, expenditures and labor of a competitor.” Id.; Johnson & Johnson v. Am. Nat’l Red Cross, 552 F.Supp.2d 434, 446 (S.D.N.Y.2008) (same); see also ITC Ltd., 482 F.3d at 165 (“New York common law allows a plaintiff to sue for unfair competition where a ‘property right or a commercial advantage’ has been ‘misappropriated.’ ” (quoting Flexitized, Inc. v. Nat’l Flexitized Corp.," }, { "docid": "11750330", "title": "", "text": "N.Y. Gen. Bus. Law §§ 360-1 (McKinney Cum.Supp.1999). In Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 542, 399 N.Y.S.2d 628, 369 N.E.2d 1162 (1977), the New York Court of Appeals concluded that the statute was designed to prevent “the whittling away cf an established trade-mark’s selling power and value through its unauthorized use by others upon dissimilar products.” 42 N.Y.2d at 542, 399 N.Y.S.2d 628, 369 N.E.2d 1162. The statute applies with equal force to trade dress infringement claims. See Merriam-Webster, Inc. v. Random House, Inc., 35 F.3d 65, 73 (2d Cir.1994). To prevail on a trade dress dilution claim under the statute, a person must prove two elements: (1) ownership of a distinctive mark; and (2) likelihood of dilution in the form of either blurring or tarnishment. See Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 506 (2d Cir.1996). Although the statute expressly dispenses with the requirement of likelihood of confusion, the courts have held that dilution is not possible, without “some mental association between ... [the] marks.” Mead Data Cent., Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026, 1031 (2d Cir.1989). 1. Ownership of a Distinctive Trade Dress In Allied Maintenance, the New York Court of Appeals stated that the statute protected only those trademarks that were “truly of distinctive quality or ... [had] acquired a secondary meaning in the mind of the public.” 42 N.Y.2d at 546, 399 N.Y.S.2d 628, 369 N.E.2d 1162. In the context of analyzing Landscape’s Lanham Act claim, the Court has already found that Landscape’s Petoskey Collection is distinctive by virtue of having acquired secondary meaning. See supra Part I.A. Landscape therefore fulfills this element of its anti-dilution claim. 2. Likelihood of Dilution — Blurring Dilution of trade dress can occur in the forms of tarnishment or blurring. See Sports Auth., Inc. v. Prime Hospitality Corp., 89 F.3d 955, 966 (2d Cir.1996). Landscape makes no specific allegations of tarnishment and instead focuses its claim on the argument that defendant’s Colon nade collection has blurred the Petoskey trade dress. The Court finds that the evidence" }, { "docid": "15015783", "title": "", "text": "copy of another’s is fair use.” (Def. Mem. 14 (internal quotation marks omitted)). But, as discussed above, Excell did not merely use Coty’s marks and trade dresses to describe its own fragrances. And Excell’s products cannot be described as “legitimate cop[ies]” of Coty’s fragrances. (Ferrullo Dep. 107 (“[Excell is] not offering a version of the original [fragrance].”). Accordingly, Excell’s fair use. argument fails and Coty prevails on its trademark infringement claims under both federal and New York law. C. Trademark Dilution Next, the Court turns to Coty’s trademark dilution claims under the Lanham Act, 15 U.S.C. § 1125(c), and New York General Business Law § 360-1, Coty alleges federal trademark dilution with respect to its registered Calvin Klein, Vera Wang, and Lady Gaga marks, and dilution under New York law for Excell’s use of its remaining marks. (Pis,’ Mem. 18). The Court will address the two -types of trademark dilution-—dilution by blurring and dilution by tarnishment—in turn. 1. Dilution by Blurring Dilution by blurring refers to the gradual diminishment of a famous mark’s acquired “ability to clearly and unmistakably distinguish one source through unauthorized use.” Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 506 (2d Cir. 1996) (internal quotation marks and ellipses omitted); see also Allied Maint. Corp. v. Allied Meek Trades, Inc., 42 N.Y.2d 538, 399 N.Y.S.2d 628, 369 N.E.2d 1162, 1166 (1977) (observing that New York law protects against the “gradual whittling away of a firm’s distinctive trademark ór name”). Put differently, “dilution occurs when the unauthorized use, of a famous mark reduces the public’s perception that the mark signifies something unique, singular, or particular” H.R. Rep. No. 109-23, at. 4 (2005), as reprinted in 2006 U.S.C.C.A.N. 1091, 1092; see also Louis Vuitton Malletier, S.A. v. My Other Bag, Inc., 156 F.Supp.3d 425, 433 (S.D.N.Y. 2016). Classic examples of dilution by blurting include “hypothetical anomalies as Dupont shoes, Buick aspirin tablets, Schlitz varnish, Kodak pianos, Bulova gowns, and so forth.” Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 588 F.3d 97, 105 (2d Cir. 2009). “Only a famous mark—one that is widely recognized by'the national consuming" }, { "docid": "23364974", "title": "", "text": "Under New York law, proof of likelihood of confusion as to source is essential to prevail on either of these causes of action. Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 543, 399 N.Y. S.2d 628, 369 N.E.2d 1162 (1977); Dell Publishing Co. v. Stanley Publications, Inc., 9 N.Y.2d 126, 132-33, 211 N.Y.S.2d 393, 172 N.E.2d 656 (1961). As with the Lanham Act claims, such proof was lacking. While the District Court also reached the correct result in dismissing the claim of dilution, it incorrectly included as necessary elements of that cause of action consumer confusion and direct competition. 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.Law § 368-d (emphasis added). Section 368-d’s qualifying clause means exactly what its language denotes. Neither competition between the parties nor confusion about the source of products, Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 205 n. 8 (2d Cir.1979), appears to be necessary to state a cause of action for dilution. Allied, 42 N.Y.2d at 544-45, 399 N.Y.S.2d 628, 369 N.E.2d 1162. The purposes for which the statute was enacted lend further support to our view that confusion and direct competition are not necessary elements of an anti-dilution action under New York law. Section 368-d provides a cause of action distinct from other state law actions for trademark infringement and unfair competition. “The evil which the Legislature sought to remedy was not public confusion caused by similar products or services sold by competitors, but a cancer-like growth of dissimilar products or services which feeds upon the business reputation of an established distinctive trade-mark or name.” Allied, 42 N.Y.2d at 544, 399 N.Y.S.2d 628, 369 N.E.2d 1162; see R.G. Barry Corp. v. Mushroom Makers, Inc., 612" }, { "docid": "23421251", "title": "", "text": "submitted to the district court. We therefore conclude that Hormel’s infringement claim is without merit. B. Trademark Dilution Hormel asserts error in the district court’s conclusion that use of the Spa’am likeness, both with and without the name “Spa’am,” will not dilute HormePs SPAM trademark under New York’s anti-dilution statute, N.Y.Gen.Bus.Law § 368-d (McKinney 1984), which 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 óf 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. Dilution is grounded on the idea that a trademark can lose its “ability ... to clearly and unmistakably distinguish one source” through unauthorized use. 3 McCarthy on Trademarks and Unfair Competition § 24.13[l][a] at 24-106 (3d ed. 1995) (hereinafter “McCarthy”). It is a “gradual whittling away of a firm’s distinctive trade-mark or name.” Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 544, 399 N.Y.S.2d 628, 369 N.E.2d 1162 (1977). In order to establish a dilution claim, two elements must be shown: (1) ownership of a distinctive mark, and (2) a likelihood of dilution. Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 625 (2d Cir.1983). It is beyond dispute that SPAM is an extremely strong mark. Thus, this case turns on the question whether there is a likelihood of dilution. Such a likelihood can be established by a showing either of blurring or of tarnishment. Hormel contends that Henson’s merchandise will dilute its mark under both theories. We disagree. Blurring Dilution by blurring occurs when “[customers or prospective customers ... see the plaintiff’s mark used on a plethora of different goods and services.” 3 McCarthy § 24.13[l][a][i] at 24-106. “Thus, dilution by ‘blurring’ may occur where the defendant uses or modifies the plaintiff’s trademark to identify the defendant’s goods and services, raising the possibility that the mark will lose its ability to serve as a" }, { "docid": "16924850", "title": "", "text": "Dilution Under Federal and Common Law As yet another variation on its contributory infringement claim, Tiffany also alleges that eBay’s activities constitute trademark dilution under the Lanham Act, 15 U.S.C. § 1125(c), as well as under New York General Business Law § 360-Z. (Am.CompLIffl 52-55.) Specifically, Tiffany argues that eBay is liable for dilution by blurring because eBay uses the Tiffany name to advertise and sell products that eBay knows to be counterfeit, thus resulting in the “ ‘diminution of the capacity of [Plaintiffs] mark [ ] to serve as a unique identifier of its products and services.’ ” (Pl.’s Pr. Findings at 38) (quoting New York Stock Exch., Inc. v. New York, New York Hotel, LLC, 293 F.3d 550, 557 (2d Cir.2002).) Tiffany also alleges that eBay is liable for dilution by tarnishment because eBay’s use of the TIFFANY Marks harms Tiffany’s reputation. (PL’s Pr. Findings at 38.) Tiffany submits that by linking Tiffany’s marks to products of shoddy quality, “the public will associate, and continue to associate, the lack of quality or lack of prestige in the goods sold on eBay with genuine Tiffany goods.” (PL’s Pr. Findings at 38-39.) The Court concludes that Tiffany has failed to prove that eBay is liable for trademark dilution and that even assuming arguendo that eBay could be liable for dilution, eBay’s use of the TIFFANY Marks is a protected, nominative fair use. a. Legal Standard The legal theory of dilution is grounded in the notion that a trademark can lose its “ability ... to clearly and unmistakably distinguish one source through unauthorized use.” Hormel Foods Corp. v. Jim Henson Prods., 73 F.3d 497, 506 (2d Cir.1996) (internal quotation omitted). Anti-dilution statutes protect against the “gradual whittling away of a firm’s distinctive trade-mark or name.” Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 544, 399 N.Y.S.2d 628, 369 N.E.2d 1162 (1977). Trademark dilution is a broader, and more subtle, principle than classic trademark infringement. As a preliminary matter, the Court must consider which federal anti-dilution statute applies to this case. When Tiffany filed its Amended Complaint on July" }, { "docid": "533232", "title": "", "text": "be entitled to a “fair use” defense. c. Anti-dilution Claim Plaintiff also makes a claim for injunctive relief on the basis of New York’s anti-dilution statute, New York General Business Law, § 368-d, which states: 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. Confusion and direct competition are not necessary elements. Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 624 (2d Cir.1983). The anti-dilution statute protects not only commercial goodwill, but also the selling power associated with a distinctive name. Id. Plaintiff’s dilution claim, however, is not viable. The New York Court of Appeals has stated that in order to merit protection under the anti-dilution statute a trademark must be “truly distinctive” or have acquired secondary meaning. Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 399 N.Y.S.2d 628, 632-33, 369 N.E.2d 1162, 1166-67 (1977). For purposes of the anti-dilution statute, “distinctive” trademarks are those which are unique and which are not generic or descriptive. P.F. Cosmetique, S.A. v. Minnetonka Inc., 605 F.Supp. 662, 672 (S.D.N.Y.1985). The word “interview” used by defendant is not “distinctive” for anti-dilution purposes, and thus does not warrant protection. Defendant has not used the more distinctive INTERVIEW mark, and the Court need not decide whether use of that trademark would implicate the anti-dilution statute. Based on this lack of distinctiveness, the Court finds that plaintiff is not likely to succeed on the anti-dilution claim. II. Serious Issues for Litigation and Balance of Hardships The Court does not find that there are serious issues for litigation warranting the issuance of a preliminary injunction. Defendant is not using the INTERVIEW trademark, but only the word “interview” as a descriptive section heading. Other magazines use the word in a similar fashion. It is unlikely that consumers will come" }, { "docid": "20332416", "title": "", "text": "secondary meaning, the court did not reach the issue of whether defendant’s use of the marks created a likelihood of confusion); Ideal World Marketing, 15 F.Supp.2d at 246 (“Because [plaintiff] has therefore failed, as a matter of law, to establish that [its claimed mark] has attained a secondary meaning, there is no need for the Court to examine the second prong of the test for trademark infringement — the likelihood of confusion between the two marks.”). 2. State Law Claims for Trademark Infringement, Dilution, and Unfair Competition In Count Ten of its Amended Complaint, REI claims that Defendants have engaged in unfair competition, trademark infringement, dilution, and palming off in violation of New York common law and in violation of New York General Business Law, Article 24. (Am. Compl. ¶¶ 182-87.) Article 24 is codified as New York General Business Law § 360. a.Trademark infringement “The elements of trademark infringement under New York common law mirror the Lanham Act.” Gucci Am., Inc. v. Guess?, Inc., 868 F.Supp.2d 207, 240 (S.D.N.Y.2012). Under New York law, as under § 43(a) of the Lanham Act, to prevail on a claim for trademark infringement of an unregistered mark, a plaintiff must establish secondary meaning. See Allied Maint. Corp. v. Allied Mech. Trades, Inc., 42 N.Y.2d 538, 399 N.Y.S.2d 628, 369 N.E.2d 1162, 1164 n. 2 (1977) (“[S]ince a trade name or nontechnical trade-mark cannot claim the procedural advantages afforded a technical mark, it is necessary to show in an action for infringement that the name or mark has acquired a secondary meaning.” (citation omitted)); see also Camelot Assocs. v. Camelot Design & Dev. LLC, 298 A.D.2d 799, 750 N.Y.S.2d 155, 156 (2002) (“[W]ith respect to the trademark infringement claim, a plaintiff is required to [] show that the trade name has acquired a secondary meaning.”); Adirondack Appliance Repair, Inc. v. Adirondack Appliances Parts, Inc., 148 A.D.2d 796, 538 N.Y.S.2d 118, 120 (1989) (same). Because REI has failed to adduce evidence of secondary meaning, its common law trademark infringement claim fails as a matter of law. b.Dilution New York General Business Law § 360-1 provides" }, { "docid": "5625567", "title": "", "text": "claims for trademark infringement and unfair competition with respect to Solid’s use of the “05” mark. B. GTFM’s State Law Dilution Claim Section 360 — Z of the New York General Business law 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. Law § 360-Z. “New York law accords protection against dilution to marks that are distinctive as a result of acquired secondary meaning as well as to those that are inherently distinctive.” N.Y. Stock Exch., Inc. v. New York, New York Hotel, LLC, 293 F.3d 550, 557 (2d Cir.2002). Thus, GTFM’s “05” trademark is eligible for antidilution protection under New York law. “Accordingly, the only question is whether there is a likelihood of dilution.” Id. “Dilution under New York law can involve either blurring or tarnishment.” Id. Blurring occurs “where the defendant uses or modifies the plaintiffs’ trademark to identify the defendant’s goods and services, raising the possibility that the mark will lose its ability to serve as a unique identifier of the plaintiffs’ product.” Deere & Co. v. MTD Prod., Inc., 41 F.3d 39, 43 (2d Cir.1994) (emphasis omitted). “To determine the likelihood of blurring, we have looked to six factors, including: (i) the similarity of the marks; (ii) the similarity of the products covered; (iii) the sophistication of the consumers; (iv) the existence of predatory intent; (v) the renown of the senior mark; and (vi) the renown of the junior mark.” N.Y. Stock Exch., 293 F.3d at 558. Each of these factors has already been considered above. GTFM’s use of the “05” trademark and Solid’s use of the number “05” and the trademark “PLAYERS 05” are highly similar, as are the products to which their respective designations are affixed. The relevant consumer population is of only moderate sophistication." }, { "docid": "15015784", "title": "", "text": "to clearly and unmistakably distinguish one source through unauthorized use.” Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 506 (2d Cir. 1996) (internal quotation marks and ellipses omitted); see also Allied Maint. Corp. v. Allied Meek Trades, Inc., 42 N.Y.2d 538, 399 N.Y.S.2d 628, 369 N.E.2d 1162, 1166 (1977) (observing that New York law protects against the “gradual whittling away of a firm’s distinctive trademark ór name”). Put differently, “dilution occurs when the unauthorized use, of a famous mark reduces the public’s perception that the mark signifies something unique, singular, or particular” H.R. Rep. No. 109-23, at. 4 (2005), as reprinted in 2006 U.S.C.C.A.N. 1091, 1092; see also Louis Vuitton Malletier, S.A. v. My Other Bag, Inc., 156 F.Supp.3d 425, 433 (S.D.N.Y. 2016). Classic examples of dilution by blurting include “hypothetical anomalies as Dupont shoes, Buick aspirin tablets, Schlitz varnish, Kodak pianos, Bulova gowns, and so forth.” Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 588 F.3d 97, 105 (2d Cir. 2009). “Only a famous mark—one that is widely recognized by'the national consuming public as a designation of source—is afforded protection against blurring under the Lanham Act.” Gucci, 868 F.Supp.2d at 241. “After a showing of fame is made,” a plaintiff must then show the following to succeed on a dilution-by-blurring claim: “(1) that [the defendant] has been using the allegedly diluting designs in commerce; (2) that [the defendant’s] use of those designs began after each' of [the plaintiffs] marks became famous; and ’ (3) [the defendant’s]' use is likely to cause dilution of the authentic [plaintiffs] mark by blurring.” Id. New York law is similar, but does hot require proof that the plaintiffs mark is famous, only that it is “truly distinctive or has acquired .secondary meaning”, and that there is a likelihood of dilution. Strange Music, Inc. v. Strange Music, Inc., 326 F.Supp.2d 481, 496 (S.D.N.Y. 2004). In assessing'whether dilution by blurring is likely to occur under federal law, a court “may consider all relevant factors,” including the following six statutorily enumerated factors: (1) the degree of similarity between the mark or trade name and the" }, { "docid": "11750329", "title": "", "text": "law of unfair competition. See PL PTB at 29-30. Putting aside the likelihood that this claim is preempted by federal intellectual property laws, see Landscape Forms, 113 F.3d at 383, in order to prevail on a claim of unfair competition in New York, a party must prove likelihood of confusion. See Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1048 (2d Cir.1992). Accordingly, in light of the Court’s finding that there is no likelihood of confusion, plaintiffs unfair competition claim must be dismissed. B. Anti-Dilution Landscape also makes a claim of trademark dilution under section 360-1 (formerly 368-d) of the New York General Business Law (“the statute”). The 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. Law §§ 360-1 (McKinney Cum.Supp.1999). In Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 542, 399 N.Y.S.2d 628, 369 N.E.2d 1162 (1977), the New York Court of Appeals concluded that the statute was designed to prevent “the whittling away cf an established trade-mark’s selling power and value through its unauthorized use by others upon dissimilar products.” 42 N.Y.2d at 542, 399 N.Y.S.2d 628, 369 N.E.2d 1162. The statute applies with equal force to trade dress infringement claims. See Merriam-Webster, Inc. v. Random House, Inc., 35 F.3d 65, 73 (2d Cir.1994). To prevail on a trade dress dilution claim under the statute, a person must prove two elements: (1) ownership of a distinctive mark; and (2) likelihood of dilution in the form of either blurring or tarnishment. See Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 506 (2d Cir.1996). Although the statute expressly dispenses with the requirement of likelihood of confusion, the courts have held that dilution is not possible, without “some mental association between ... [the]" } ]

[ { "docid": "5759355", "title": "", "text": "v. Medtronic Bio-Medicus, Inc., 21 F.3d 254, 257 (8th Cir.1993). Recently, the Court of Appeals for the First Circuit addressed this issue in Simas v. Quaker Fabric Corp., 6 F.3d 849 (1st Cir.1993). There, the Court considered whether a Massachusetts “tin parachute” statute required employers to establish an employee benefit plan. If the state statute were deemed to mandate the establishment of an employee benefit plan, it would be preempted by ERISA. Noting that the Massachusetts statute imposed upon employers “ongoing administrative obligations, ... of a kind and over a time period, that go far enough beyond Fort Halifax to call the regime a ‘plan’ within the meaning of ERISA,” the court held the statute to be preempted. Id., at 853. Specifically, the Court noted that the statute required the employer to evaluate each individual’s employment situation and to determine whether he or she qualified for unemployment benefits under state law, in deciding eligibility for the severance benefit provided. The nature and magnitude of the administrative obligations imposed upon an employer by the statute, were sufficient to qualify the statutory scheme as one “related to” an ERISA benefit plan. Similarly, in Bogue v. Ampex Corp., 976 F.2d 1319 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1847, 123 L.Ed.2d 471 (1993), the Court of Appeals for the Ninth Circuit was called upon to interpret the “ongoing administrative program” standard established by the Supreme Court in Fort Halifax. There, a company which was considering the sale of a subsidiary created a severance benefit plan to encourage the executives of the subsidiary to remain in its employ. The plan provided that if the subsidiary were sold and if the executives were not offered “substantially equivalent employment” by the subsidiary’s purchaser, they would be provided with severance benefits. Applying the test articulated in Fort Halifax, the court noted that “the program, by its own terms, required the sort of discretionary decision-making by the plan’s administrator that is the hallmark of an ERISA plan.” Bogue, 976 F.2d at 1322-23. Thus, because the severance program could not be administered without the type of administrative" } ]

[ { "docid": "10993103", "title": "", "text": "determinations that did not require the establishment of an administrative scheme. Most courts concluding that severance and similar benefits constitute an ERISA plan have done so because of the employer’s discretion in determining eligibility requires an administrative scheme. See, e.g., Swinney, 46 F.3d at 517 (determining eligibility for layoff benefits required individualized decisionmaking regarding, among other factors, state unemployment eligibility and the amount of money in the SUB fund); Simas, 6 F.3d at 853 (statute governing severance required individualized determination regarding state unemployment eligibility, including whether termination was for cause); Bogue, 976 F.2d at 1322 (employer obligated to determine whether employee’s job with successor employer was “substantially equivalent” to pre-acquisition position). Defendant argues that Burns, the plant manager, had sole authority to grant “mutual agreement.” Therefore, he decided who was eligible for benefits based on the employee’s job classification and the company’s work force needs in light of the company’s attempt to continue filling customer orders while it gradually closed its West Port plant. Defendant suggests that this is precisely the type of discretion that requires an ongoing administrative plan, and that distinguishes this case from Fort Halifax and other cases that involve merely mechanical determinations. The Court finds that Burns’ discretion regarding which employees would receive severance pay does not render defendant’s severance policy an ERISA plan. This is not a case where the employer obligated itself to provide severance pay to all employees who met X, Y and Z criteria. Although defendant has phrased its “severance policy” in terms of eligibility criteria, defendant essentially used severance benefits selectively to entice certain employees to resign on the company’s terms so that the company could fill its production needs. Employees could only receive severance if Burns said they could, ie., “mutual agreement.” In other words, the discretion involved in defendant’s severance “policy” was in deciding whether to offer severance benefits at all, rather than in deciding which employees would be eligible for the severance benefits. Once Burns decided it was in company’s best interest to encourage the resignation of a particular employee, the payment of severance was mechanical, and no" }, { "docid": "15667530", "title": "", "text": "“[t]he requirement of a one-time, lump-sum payment triggered by a single event” because “[t]o do little more than write a check hardly constitutes the operation of a benefit plan.” Id. at 12, 107 S.Ct. 2211. Therefore, whether a benefit is regulated by ERISA turns on the nature and extent of the administrative obligations that the benefit imposes on the employer. Although Fort Halifax Packing has not yet been applied by this court, the decisions of other circuits agree with the proposition that an employee benefit may be considered a plan for purposes of ERISA only if it involves the undertaking of continuing administrative and financial obligations by the employer to the behoof of employees or their beneficiaries. Belanger v. Wyman-Gordon Co., 71 F.3d 451, 454 (1st Cir.1995); see, e.g., Delaye v. Agripac, Inc., 39 F.3d 235, 237 (9th Cir.1994); Kulinski v. Medtronic Bio-Medicus, Inc., 21 F.3d 254, 257-58 (8th Cir.1994); Angst v. Mack Trucks, Inc., 969 F.2d 1530, 1538, 1540 (3d Cir.1992). Under the Window Program, the determinations of eligibility and the amount of the benefits to be paid were purely mechanical and were based on one triggering event: the eligible employee’s election to retire pursuant to the terms of the Program. Washington Gas was only required to make the straightforward factual determination of whether the employee had met each of the conditions specified in the Program, such as the requirements that the employee submit an election form and meet certain length-of-service criteria, and then to calculate the amount of the separation payment by multiplying the employee’s base pay rate by fifty-two. These are not the kinds of administrative decisions that require ERISA’s protection. See, e.g., Velarde v. PACE Membership Warehouse, Inc., 105 F.3d 1313, 1316-17 (9th Cir.1997) (plan offering different benefits to those terminated for cause or not for cause “failed to rise to the level of ongoing particularized discretion required to transform a simple severance agreement into an ERISA employee benefits plan”); Belanger, 71 F.3d at 452, 455 (plan allowing age-qualified workers to receive variable payment based on years of service required only mechanical decision making and was" }, { "docid": "23692896", "title": "", "text": "at 237 (citing Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 12, 107 S.Ct. 2211, 2217-18, 96 L.Ed.2d 1 (1987)) (emphasis added). Following our holding in Delaye, the district court concluded that the Stay On Letter does not constitute an “employee benefit plan” because it does not require an ongoing administrative scheme. PACE contends that the district court erred because the Stay On Letter created a plan similar to that in Bogue where we found the plan did constitute an employee benefit plan. In Bogue, we concluded that a special compensation program for 10 key executives was an employee benefit plan under ERISA because the plan involved more than “[t]he theoretical possibility of a one-time obligation in the future.” 976 F.2d at 1322 (quoting Fort Halifax, 482 U.S. at 12, 107 S.Ct. at 2217-18). The program provided for severance benefits if the employee was terminated and neither the employer, nor the new owner of the business, offered “substantially equivalent” employment. Id. at 1321. In that situation, the employer “was obligated to apply enough ongoing, particularized, administrative, discretionary analysis to make the program ... a ‘plan.’ ” Id. at 1323. In Delaye, however, we rejected an employee’s argument that a severance benefits package is a “plan” for purposes of ERISA. The contract in Delaye provided that if the employer terminated the employee for cause he would receive only his yearly base compensation. However, if termination was without cause the employee would receive a larger benefits package. The court found that this contract did not implicate an ongoing administrative scheme because “there is nothing discretionary about the timing, amount or form of the payment.” Delaye, 39 F.3d at 237. The Delaye court distinguished Bogue in two ways. Id. at 238. First, the severance plan in Bogue went into effect only if the covered employee was terminated and not offered “substantially similar” employment. Id. Determining whether employment was “substantially similar” required “ongoing administrative analysis.” Id. Second, Bogue’s severance package covered ten top executives and thus the employer would need to make ten separate discretionary determinations. Id. PACE argues that the Stay On" }, { "docid": "8723589", "title": "", "text": "court addressed in Sher-rod was whether the VTEP was an ERISA plan; it did not deal with the laid-off workers plans. Sherrod is therefore not controlling, and we have federal question jurisdiction of this case under ERISA so long as the laid-off workers plans are employee welfare benefit plans within ERISA’s statutory definition. 29 U.S.C. 1002(1). They undoubtedly are. The hallmark of an ERISA benefit plan is that it requires “an ongoing administrative program to meet the employer’s obligation.” Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11, 107 S.Ct. 2211, 2217, 96 L.Ed.2d 1 (1987). As we stated in Sherrod: In determining whether an ERISA plan exists, “[t]he pivotal inquiry is whether the plan requires an establishment of a separate, ongoing administrative scheme to administer the plan’s benefits. Simple or mechanical determinations do not necessarily require the establishment of such a scheme; rather an employer’s need to create an administrative system may arise where the employer, to determine the employees’ eligibility for and level of benefits, must analyze each employee’s particular circumstances in light of the appropriate criteria.” Sherrod, 33 F.3d at 638 (quoting Kulinski v. Medtronic Bio-Medicus, Inc., 21 F.3d 254, 257 (8th Cir.1994)). The need for an administrative scheme may also arise when the employer “assumes ... responsibility to pay benefits on a regular basis, and thus faces ... periodic demands on its assets that create a need for financial coordination and control.” Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 12, 107 S.Ct. 2211, 2218, 96 L.Ed.2d 1 (1987); see also Simas v. Quaker Fabric Corp. of Fall River, 6 F.3d 849, 853 (1st Cir.1993) (noting that in applying Fort Halifax, courts have generally emphasized “the mechanical, one-time nature of the severance payment.”). In this case, the GM plans providing SUB benefits, GIS benefits, and health insurance all pay out benefits on a periodic basis, as opposed to the one-time severance payment contemplated in Sherrod and Fort Halifax. Moreover, determining the eligibility for and level of each of these employee benefits requires the individualized decisionmaking which makes an ongoing administrative scheme a necessity. A" }, { "docid": "11011444", "title": "", "text": "482 U.S. at 12, 107 S.Ct. at 2218 (footnote omitted). The lump-sum nature of the Maine obligation weighed heavily in the Court’s analysis because an ongoing administrative program typically is required in instances in which there are “ongoing benefits to be paid,” id. at 14-15 n. 9,107 S.Ct. at 2219 n. 9, and if there is a “regularity of payment,” id. at 18 n. 12,107 S.Ct. at 2221 n. 12. Fort Halifax does not define comprehensively the precise contours of an “ongoing administrative program.” The subsequent case law of the circuits, however, has provided significant guidance. For instance, our colleagues in the Eighth Circuit have set forth in a helpful manner the difference between the situation in Fort Halifax and those situations that require the implementation of an administrative scheme: The pivotal inquiry is whether the plan requires the establishment of a separate, ongoing administrative scheme to administer the plan’s benefits. Simple or mechanical determinations do not necessarily require the establishment of such an administrative scheme; rather, an employer’s need to create an administrative system may arise where the employer, to determine the employee’s eligibility for and level of benefits, must analyze each employee’s particular circumstances in fight of the appropriate criteria. Kulinski v. Medtronic Bio-Medicus, Inc., 21 F.3d 254, 257 (8th Cir.1994). The distinction between situations such as the one confronted by the Supreme Court in Fort Halifax and those that are characterized properly as plans is necessarily a “matter of degrees but under Fort Halifax degrees are crucial.” Simas v. Quaker Fabric Corp., 6 F.3d 849, 853 (1st Cir.1993). As the Secretary of Labor notes, when, as in this case, the judicial task is to distinguish between individual severance benefit contracts and those situations that constitute ERISA plans, some “difficult line-drawing problems” can result. Amicus Br. at 13. For instance, our case law in this area has noted that there can be severance agreements that are properly characterized as simple contracts be-, tween an employee and employer and do not constitute plans under ERISA. These contractual arrangements often bind an employer to enroll, or to keep enrolled, an" }, { "docid": "1536037", "title": "", "text": "was small, the program’s administration required a case-by-case, discretionary application of its terms.... We hold that Allied-Signal was obligated to apply enough ongoing, particularized, administrative, discretionary analysis to make the program in this case a “plan.” Id. Similarly, in Simas v. Quaker Fabric Corp., 6 F.3d 849 (1st Cir.1993), the First Circuit faced a Massachusetts “tin parachute” statute that required employers to pay severance benefits to employees who lost their jobs within 24 months of a corporate takeover. The payments were conditioned on the employee’s eligibility for unemployment benefits; in other words, if an employee had been terminated for cause, he would not be entitled to severance benefits under the statute. The First Circuit held that ERISA preempted the “tin parachute” statute. “It may be that in some instances, a determination of eligibility would be straightforward and, in others, the employer would have to make its own judgment---- But in all events for at least two years after the takeover, ... the employer would have to maintain records, apply the ‘for cause’ criteria, and make payments or dispute the obligation.” 6 F.3d at 853. While recognizing that Fort Halifax established no bright lines to determine whether ERISA preempted a state statute or employer promise, the court ultimately landed on the side of preemption because, “as in Bogue, the time period [24 months] is prolonged, individualized decisions are required, and at least one of the criteria [the ‘for cause’ standard] is far from mechanical.” Id. at 854. See also Fontenot v. NL Industries, Inc., 953 F.2d 960, 963 (5th Cir.1992) (distinguishing single, non-ERISA-preempted “golden parachute” payment from ERISA-preempted plan requiring employer to analyze “the circumstances of each employee’s termination ... in light of certain criteria”); James v. Fleet/Norstar Fin’l Group, Inc., 992 F.2d 463, 468 (2d Cir.1993) (employer’s promise to give 60 days of additional pay did not implicate ERISA in part “because the simple arithmetical calculations and clerical determination that Fleet was required to make to ascertain each appellee’s severance pay was a far cry from the ‘ongoing, particularized, administrative, discretionary analysis’ required ... in Bogue”). There is no middle" }, { "docid": "20056849", "title": "", "text": "plan as defined by the courts. If defendant did have such an employee benefit plan, then, second, we must analyze whether the state laws involved “relate to” this plan. A. Existence of an ERISA Plan The Supreme Court very recently addressed the meaning of “employee benefit plan” in the context of ERISA pre-emption in Fort Halifax Packing Co., Inc. v. Coyne, — U.S. -, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987). In Fort Halifax, the Court ruled that a Maine statute requiring employers to provide a one-time severance payment to workers in the event of a plant’s relocation or closing was not preempted by ERISA. The Court held that the Maine statute did not establish an employee benefit “plan,” and that only state laws relating to such plans were pre-empted by ERISA. The Court stated that a plan entails ongoing administrative systems to meet the employer’s obligations, and that the purpose of ERISA pre-emption was to avoid the confusing and conflicting application of different state schemes. “Only a plan embodies a set of administrative practices vulnerable to the burden that would be imposed by a patchwork scheme of regulation,” the Court stated. 107 S.Ct. at 2217. A company’s program mandated by the Maine statute, requiring a single “lump-sum payment triggered by a single event requires no administrative scheme whatsoever,” id. at 2218, and was held not to constitute a plan, and so the statute was not pre-empted by ERISA. The Court distinguished the Maine statutory program from a situation in which an employer agreed to pay severance benefits to each employee as he or she leaves the company’s employ. In the latter case, an ongoing administrative scheme was necessary, since the employer made a separate analysis of each employee’s eligibility for benefits and schedule of payments, and thus an ERISA plan was in existence. Id. at 2221 n. 10. Defendant urges that an ERISA plan existed in the case presently before us, since its severance program entailed individual payments to each employee, based on that employee’s eligibility. The severance agreement, which is attached as Exhibit A to the complaint, provides" }, { "docid": "2559527", "title": "", "text": "72, 76 (2d Cir.1996) (ERISA implicated where employer determines whether fired employee had made a “good faith effort” to secure employment elsewhere). The cases which have dealt with “for cause” criteria and bear the closest relationship to the facts at bar are Simas v. Quaker Fabric, 6 F.3d 849 (1st Cir.1993), and Rodowicz v. Mass. Mutual Life, 192 F.3d 162 (1st Cir.1999). The Simas Court found that an ERISA plan existed because the determination of whether an employee was discharged for cause was “likely to provoke controversy and call for judge-ments based on information well beyond the employee’s date of hiring and termination.” Champagne, 997 F.Supp. at 225 (quoting Simas, 6 F.3d at 853). However, the Simas plan required the employer to maintain records, apply the “for cause” criteria, and make payments or otherwise actively dispute the obligation, which involved “ongoing obligations materially beyond those present in Fort Halifax.” Simas, 6 F.3d at 853-854. Likewise, the Rodoiuicz plan also authorized eligibility disqualifications for employees who were involuntarily terminated and provided an appeals process for aggrieved employees to challenge that determination, which made it “somewhat less mechanical and unthinking.” O’Connor, 251 F.3d at 268 (quoting Rodowicz, 192 F.3d at 172). Nonetheless, the Court found the Rodowicz severance scheme was not an ERISA plan because the “for cause” determination bore little weight compared with the non-ERISA qualities of the overall plan. Id. This Court concludes that the administrative obligation which the “gross misconduct” determination imposed on management did not go beyond Fort Halifax, thus it is inappropriate to treat the original plan as an ERISA plan. Equipped with a list of sixteen acts classified as “gross misconduct,” each manager was aware of the types of behavior severe enough to justify denying severance benefits. Thus, the exercise of managerial discretion was limited to acts unforeseen at the time the list was drafted, and administration of the “for cause” criteria would usually require a straightforward application of the listed “acts of gross misconduct.” In sum, the original plan did not create an administrative burden substantial enough to invoke ERISA status. Once the guided “for" }, { "docid": "1536036", "title": "", "text": "those executives (at least temporarily), Ampex’s parent company, Allied-Signal, established a program whereby it would pay the managers severance benefits if the purchaser did not offer them “substantially equivalent employment.” While the plaintiff argued that ERISA did not preempt his claim under the severance program, the Ninth Circuit disagreed, relying in large part on Fort Halifax. “In this case, Allied-Signal, the program’s administrator, remained obligated to decide whether a complaining employee’s job was ‘substantially equivalent’ to his pre-acquisition'job. Although the program, like the plan[ ] in Fort Halifax ... was triggered by a single event, that event would occur more than once, at a different time for each employee.” 976 F.2d at 1323. In contrast to the one-time, routine payout facing the employer in Fort Halifax, the disbursements in Bogue would be discretionary and recurring. The court concluded: There was no way to carry out that obligation with the unthinking, one-time non-discretionary application of the plan administrators in Fort Halifax. Although its application was uncertain, its term was short, and the number of its participants was small, the program’s administration required a case-by-case, discretionary application of its terms.... We hold that Allied-Signal was obligated to apply enough ongoing, particularized, administrative, discretionary analysis to make the program in this case a “plan.” Id. Similarly, in Simas v. Quaker Fabric Corp., 6 F.3d 849 (1st Cir.1993), the First Circuit faced a Massachusetts “tin parachute” statute that required employers to pay severance benefits to employees who lost their jobs within 24 months of a corporate takeover. The payments were conditioned on the employee’s eligibility for unemployment benefits; in other words, if an employee had been terminated for cause, he would not be entitled to severance benefits under the statute. The First Circuit held that ERISA preempted the “tin parachute” statute. “It may be that in some instances, a determination of eligibility would be straightforward and, in others, the employer would have to make its own judgment---- But in all events for at least two years after the takeover, ... the employer would have to maintain records, apply the ‘for cause’ criteria, and make" }, { "docid": "9792861", "title": "", "text": "also Wickman v. Northwestern Nat’l Ins. Co., 908 F.2d 1077, 1083 (1st Cir.) (the “crucial factor in determining if a ‘plan’ has been established is whether the [proffering of an employee benefit] constituted an expressed intention by the employer to provide benefits on a regular and long term basis”), cert. denied, 498 U.S. 1013, 111 S.Ct. 581, 112 L.Ed.2d 586 (1990). “[S]o long as a proffered benefit does not involve employer obligations materially beyond those reflected in Fort Halifax ... the benefit will not amount to a plan under the ERISA statute.” Belanger, 71 F.3d at 455. In Belanger, we held that a series of early retirement offers by which the defendant employer committed to give each eligible employee a one-time, lump-sum severance bonus equal to a week’s salary for each year of employment with the company did not constitute a “plan” for purposes of ERISA. We stated that these offers were “precisely the kind of onetime, lump-sum payment that the Fort Halifax Court clearly excluded from the pantheon of ERISA plans.” Id. at 455. By contrast, in Simas v. Quaker Fabric Corp., 6 F.3d 849 (1st Cir.1993), we had held that the Massachusetts “tin parachute” statute, which authorized severance pay for employees who lost their jobs within twenty-four months following a corporate takeover, required an ongoing administrative scheme and was therefore a “plan” for purposes of ERISA. The “tin parachute” statute was triggered separately for each employee by the employee’s individual termination within one of several alternative time periods. The statute also required the plan administrator to determine whether each employee was eligible for unemployment compensation under Massachusetts law. We described this as “effectively a cross-reference to other requirements,” most importantly that the employee not have been discharged “for cause” within the meaning of state law. See id. at 853. We thought that individualized determinations, which would have taken place over the course of at least two years after the takeover, required “ongoing administrative obligations ... of a kind and over a time period, that go far enough beyond Fort Halifax to call the regime a ‘plan’ within the" }, { "docid": "8994520", "title": "", "text": "Rather the employer’s obligation is predicated on the occurrence of a single contingency that may never materialize. The employer may well never have to pay the severance benefits. To the extent that the obligation to do so arises, satisfaction of that duty involves only making a single set of payments to employees at the time the plant closes. To do little more than write a check hardly constitutes the operation of a benefit plan. Once this single event is over, the employer has no further responsibility. The theoretical possibility of a one-time obligation in the future simply creates no need for an ongoing administrative program for processing claims and paying benefits. Id. at 12, 107 S.Ct. at 2218 (footnote omitted). In Fontenot v. NL Industries, Inc., 953 F.2d 960 (5th Cir.1992), the Fifth Circuit dealt with a question closely related to that presented in Fort Halifax. Fontenot involved a severance pay plan which provided for a lump-sum cash payment “as well as a three year continuation of certain benefits” to executive employees terminated within two years of a change of corporate control. Id. at 961. The Fontenot court, relying pri marily on Fort Halifax, held that the severance pay plan at issue in that case was not a “plan” within the meaning of ERISA. In so holding, the court emphasized that the onetime obligation of the employer to provide a severance payment to departing employees had not necessitated the creation of an ongoing administrative scheme and therefore had not implicated ERISA under the Fort Halifax test. In this case, USF & G maintains that the reasoning of Fort Halifax and Fontenot is not applicable to the present case because there are factual differences between the severance payments involved in those cases and the “workforce reduction guidelines” at issue here. Specifically, USF & G argues that, unlike those cases, its plan for providing severance pay to terminated employees required an ongoing administrative scheme in that it was necessary to determine each individual employee’s eligibility for receiving severance pay as well as the amount of severance pay to be given those eligible" }, { "docid": "23067388", "title": "", "text": "employees severance pay was an employee welfare benefit plan. The employer had announced that one of its offices would be closed but told the workers in that office that, if they stayed on until the closing, they would receive sixty-days additional pay. In our view, the employer’s promise did not constitute an employee welfare benefit plan because “the nature of the payments did not require an ongoing administrative employer program to effectuate them.” Id. at 467. Other courts have reached a similar conclusion. See, e.g., Belanger v. Wymam-Gordon Co., 71 F.3d 451, 454 (1st Cir.1995) (ERISA implicated only if there are “continuing administrative and financial obligations”); Simas v. Quaker Fabric Corp., 6 F.3d 849, 853-54 (1st Cir.1993) (courts do not apply Fort Halifax where the state statute or employer promise creates “ongoing obligations”); Bogue v. Ampex Corp., 976 F.2d 1319, 1323 (9th Cir.1992) (adopting approach that ERISA requires “administrative scheme”), cert. denied, 507 U.S. 1031, 113 S.Ct. 1847, 123 L.Ed.2d 471 (1993); Fontenot v. NL Indus., Inc., 953 F.2d 960, 962-63 (5th Cir.1992) (same); Pane v. RCA Corp., 868 F.2d 631, 635 (3d Cir.1989) (same). But while it is plain that ERISA subject matter jurisdiction depends upon the need for an administrative program, the test for deciding which employer obligations and undertakings require such a program is opaque. See Simas, 6 F.3d at 854. In James, although the employer’s payments to its employees would have to be calculated individually (because the circumstances of each employee differed as to eligibility, termination, and deductions), we said that the “need to make such simple arithmetical calculations did not” mean that the severance payment program was an employee welfare benefit plan. 992 F.2d at 467. However, deciding what is not an ongoing administrative program does not aid our determination of which obligations are complex enough to require such a program. Other courts facing this same issue have looked to a variety of factors, including whether the employer’s undertaking or obligation requires managerial discretion in its administration, Bogue, 976 F.2d at 1323; whether “a reasonable employee would perceive an ongoing commitment by the employer to" }, { "docid": "20194874", "title": "", "text": "or willful disregard of the employing unit’s interest.” Mass.Gen.L. ch. 151A, § 25(e). Like the statute in Fort Halifax, section 183 requires one-time, lump sum payments triggered by a contingent event. But section 183 also requires not only that an employer be prepared to monitor terminations over a period of approximately three years and payments over a period of approximately two years, but also that the employer establish and maintain procedures for determining which employees are eligible for payment. In cases applying Fort Halifax to severance pay statutes and programs, the characterization of these payments as a “plan” or merely “benefits” has hinged upon the amount of employer discretion involved in providing payment. In Pane v. RCA Corp., 868 F.2d 631, 635 (3rd Cir.1989), aff'g 667 F.Supp. 168 (D.N.J.1987), the Court of Appeals for the Third Circuit affirmed the district court’s ruling that a severance plan set up to retain company executives during a merger was a “plan.” Fundamental to the lower court’s holding was the fact that, under the severance contract at issue, the employee was entitled to benefits only if the employee was terminated for reasons other than for cause. Thus, “the circumstances of each employee’s termination [had to] be analyzed in light of [certain] criteria, and an ongoing administrative system constituting an ERISA plan exist[ed].” 667 F.Supp. 168, 171 (D.N.J.1987). Similarly, in Bogue v. Ampex Corp., 976 F.2d 1319 (9th Cir.1992), the Court of Appeals for the Ninth Circuit held that a seventeen month “executive parachute” program was a plan, because payment was only provided if the employer were sold and the new owner failed to offer the executive “substantially equivalent employment.” Since the program administrator was obligated to determine whether a complaining employee’s job was “substantially equivalent” to his preacquisition job, the program “required a case-by-case, discretionary application of its terms” that constituted an administrative scheme. See also Akau v. Tel-A-Com Hawaii, Inc., 12 EBC 1378, 1382-83, 1990 WL 49818 (D.Ha.1990) (holding that a Hawaii statute authorizing severance pay for terminations due to a closing or relocation was an ERISA plan due to the employer’s burden" }, { "docid": "2118796", "title": "", "text": "of factors that could, if developed by evidence, distinguish the instant case in material fashion from Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987) and Kulinski v. Medtronic Bio-Medicus, Inc., 21 F.3d 254 (8th Cir.1994), which programs were held not to constitute “plans” under ERISA. In Fort Halifax, the United States Supreme Court defined a “plan” for purposes of ERISA. There a state statute required plants, upon their closing, to provide severance pay to each employee in the amount of one week’s pay for every year worked, so long as the employee had worked at the plant for three years. Fort Halifax, 482 U.S. at 5, 107 S.Ct. at 2214. The Court held that an employee’s claim under the statute was not preempted by ERISA because the statute did not establish a “plan” under ERISA. Id. at 6, 107 S.Ct. at 2214-15. The Court stated that a “plan” establishes “benefits whose provision by nature requires an ongoing administrative program to meet the employer’s obligation.” Id. at 11, 107 S.Ct. at 2217. The Court concluded that the case before it did not involve a “plan” under ERISA: The Maine statute neither establishes, nor requires an employer to maintain, an employee benefit plan. The requirement of a one-time, lump-sum payment triggered by a single event requires no administrative scheme whatsoever to meet the employer’s obligation. The employer assumes no responsibility to pay benefits on a regular basis, and thus faces no periodic demands on its assets that create a need for financial coordination and control. Rather, the employer’s obligation is predicated on the occurrence of a single contingency that may never materialize. The employer may well never have to pay the severance benefits. To the extent that the obligation to do so arises, satisfaction of that duty involves only making a single set of payments to employees at the time the plant closes. To do little more than write a check hardly constitutes the operation of a benefit plan. Once this single event is over, the employer has no further responsibility. The theoretical possibility" }, { "docid": "10993102", "title": "", "text": "defendant in this case are not distinguishable from Fort Halifax with respect to the first three factors. Both the statute in Fort Halifax and the benefits contemplated by defendant involved short-term benefits created solely to deal with a single event, i.e., the plant closing, and consisted of one-time, lump sum payments to eligible employees that did not create periodic demands on the employer’s assets. The factor that is distinguishable from Fort Halifax and warrants further discussion is the fourth of the factors listed above: the degree of employer discretion in awarding or denying benefits to individual employees. Under the statute at issue in Fort Halifax, employers did not have discretion with respect to employee eligibility. The statute contained exceptions to severance pay liability: employers did not owe severance pay to employees who worked for the employer for less than three years, employees covered by express contracts, and employees who accepted employment at a new location. Fort Halifax, 482 U.S. at 4 n. 1, 107 S.Ct. at 2213 n. 1. However, those exceptions involved only mechanical determinations that did not require the establishment of an administrative scheme. Most courts concluding that severance and similar benefits constitute an ERISA plan have done so because of the employer’s discretion in determining eligibility requires an administrative scheme. See, e.g., Swinney, 46 F.3d at 517 (determining eligibility for layoff benefits required individualized decisionmaking regarding, among other factors, state unemployment eligibility and the amount of money in the SUB fund); Simas, 6 F.3d at 853 (statute governing severance required individualized determination regarding state unemployment eligibility, including whether termination was for cause); Bogue, 976 F.2d at 1322 (employer obligated to determine whether employee’s job with successor employer was “substantially equivalent” to pre-acquisition position). Defendant argues that Burns, the plant manager, had sole authority to grant “mutual agreement.” Therefore, he decided who was eligible for benefits based on the employee’s job classification and the company’s work force needs in light of the company’s attempt to continue filling customer orders while it gradually closed its West Port plant. Defendant suggests that this is precisely the type of discretion that" }, { "docid": "20056850", "title": "", "text": "vulnerable to the burden that would be imposed by a patchwork scheme of regulation,” the Court stated. 107 S.Ct. at 2217. A company’s program mandated by the Maine statute, requiring a single “lump-sum payment triggered by a single event requires no administrative scheme whatsoever,” id. at 2218, and was held not to constitute a plan, and so the statute was not pre-empted by ERISA. The Court distinguished the Maine statutory program from a situation in which an employer agreed to pay severance benefits to each employee as he or she leaves the company’s employ. In the latter case, an ongoing administrative scheme was necessary, since the employer made a separate analysis of each employee’s eligibility for benefits and schedule of payments, and thus an ERISA plan was in existence. Id. at 2221 n. 10. Defendant urges that an ERISA plan existed in the case presently before us, since its severance program entailed individual payments to each employee, based on that employee’s eligibility. The severance agreement, which is attached as Exhibit A to the complaint, provides that an employee is entitled to these benefits only if a “triggering event” occurs, such as termination of an employee for reasons other than for cause. Thus, the circumstances of each employee’s termination must be analyzed in light of these criteria, and an ongoing administrative system constituting an ERISA plan exists. Plaintiff maintains that the severance agreement attached to his complaint does not embody the terms of defendant’s severance program, but is merely a contract issued pursuant to the overall program. Plaintiff asserts that defendant is withholding information regarding the terms of the severance program, and that without that information the court cannot evaluate whether an ERISA plan, see 29 U.S.C. § 1002(1), as defined in Fort Halifax, existed. However, there is no doubt that, whatever the specific provisions of the defendant’s severance program, they surely involve a separate determination of each individual’s eligibility for benefits. This is not a situation, like that in Fort Halifax, where the company was obligated to make a single set of payments to all employees, and thus did not" }, { "docid": "23500775", "title": "", "text": "eligible for benefits under the plan only in the event of a specified triggering event, such as a termination without cause. Pane v. RCA Corp., 667 F.Supp. 168, 170-71 (D.N.J.1987), aff'd, 868 F.2d 631 (3d Cir.1989). A short discussion of two eases on the other side of the existence-of-an-ERISA-plan fence further demonstrates the application of the Fort Halifax standard. In Bogue v. Ampex Corp., a company that was contemplating the sale of a subsidiary established a severance pay plan to induce the subsidiary’s executives to remain; in the event the subsidiary was sold, the company promised to pay severance benefits to executives who were not offered “substantially equivalent employment,” which meant that the new position’s responsibilities were not similar to those of the old, by either the company or the subsidiary’s purchaser. 976 F.2d 1319, 1321 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1847, 123 L.Ed.2d 471 (1993). Because this criterion had to be applied on a case-by-case basis, “the program, by its own terms, required the sort of discretionary decision-making by the plan’s administrator that is the hallmark of an ERISA plan,” and the plan could not be managed without an administrative scheme for dealing with claims of entitlement to the promised benefits. Id. at 1322-23. The court accordingly concluded-that the plan was one governed by ERISA. In Simas v. Quaker Fabric Corp. of Fall River, Massachusetts had enacted a statute that required employers to make substantial severance payments to employees with three or more years of employment who lost their jobs within two years of a corporate change of control. 6 F.3d 849, 851 (1st Cir.1993). The statute required graduated payments for employees based on their individual lengths of service, and it applied only to employees who would be eligible for unemployment compensation, bringing yet other statutory requirements into play. Id. at 852-53. The court held there was an ERISA plan because the statute required the establishment of an ongoing administrative scheme for determining employee eligibility. Id. at 853. The Simas court noted that, as in Bogue, the relevant time period.was prolonged, individualized decisions were required," }, { "docid": "2118804", "title": "", "text": "39 F.3d 235, 237 (9th Cir.1994) (“While payment could continue for as long as two years, there is nothing discretionary about the timing, amount, or form of the payment.”), cert. denied, 514 U.S. 1037, 115 S.Ct. 1402, 131 L.Ed.2d 289 (1995); James, 992 F.2d at 466 (“The employee’s option to receive the money in bi-weekly installments instead of in a lump sum did not change the basic situation.”); Wells, 881 F.2d at 176 (employee could elect to receive payment over two years instead of in lump sum). Plaintiffs agreement called for a lump sum payment with respect to some triggering events and payment of a fixed sum in installments with respect to other triggering events, including his involuntary termination. The fact that the banks might have had to (and in fact did) write and send out several checks instead of just one to satisfy the determined amount does not create an ongoing administrative scheme under Fort Halifax. The circuit court cases that have applied Fort Halifax in finding an ERISA “plan” may be easily distinguished from the present case by the amount of discretion exercised by the employer. In Bogue v. Ampex Corp., 976 F.2d 1319 (9th Cir.1992), cert. denied, 507 U.S. 1031, 113 S.Ct. 1847, 123 L.Ed.2d 471 (1993), the employer had to decide whether the employee’s new job was “substantially similar” to his or her former job. Id. at 1323. The court noted the great amount of discretion involved in such a . determination: “There was no way to carry out that obligation with the unthinking, one-time nondiscretionary application of the plan administrators in Fort Halifax and Wells.” Id. The court concluded that the program could not be administered without an administrative scheme. Id. In Simas v. Quaker Fabric Corp., 6 F.3d 849 (1st Cir.1993), the employer also exercised a great deal of discretion because the employer first had to determine whether the employee would be eligible for unemployment compensation. Id. at 853. Here, the banks were not required to exercise such great discretion to determine whether plaintiff was eligible to receive the payments; the banks merely had" }, { "docid": "10993099", "title": "", "text": "Halifax held that a Maine state statute requiring certain employers to provide severance pay to employees terminated due to a plant closing did not constitute an ERISA plan. Id. at 6, 107 S.Ct. at 2215. The Court relied heavily on the purposes behind ERISA. ERISA provides a “uniform administrative scheme” that protects employers from conflicting state and local regulation regarding benefit plans. The uniform regulation provided by ERISA in turn encourages employers to provide benefits to employees: “A patchwork scheme of regulation would introduce considerable inefficiencies in benefit program operation, which might lead those employers with existing plans to reduce benefits, and those without such plans to refrain from adopting them.” Id. at 11, 107 S.Ct. at 2217. These policy concerns only arise “with respect to benefits whose provision by nature requires an ongoing administrative program to meet the employer’s obligation.” Id. The Eighth Circuit, relying on Fort Halifax, adopted the following standard regarding the existence of an ERISA plan: The pivotal inquiry is whether the plan requires the establishment of a separate, ongoing administrative scheme to administer the plan’s benefits. Simple or mechanical determinations do not necessarily require the establishment of such an administrative scheme; rather, an employer’s need to create an administrative system may arise where the employer, to determine the employees’ eligibility for and level of benefits, must analyze each employee’s particular circumstances in light of the appropriate criteria. Kulinski, 21 F.3d at 257. Several courts have applied this standard to severance and similar benefits, and their conclusions necessarily differ based on the specific facts of each case. Compare Belanger v. Wyman-Gordon Co., 71 F.3d 451 (1st Cir.1995) (no ERISA “plan”); Delaye v. Agripac, Inc., 39 F.3d 235 (9th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 1402, 131 L.Ed.2d 289 (1995); Sherrod v. General Motors Corp., 33 F.3d 636 (6th Cir.1994); Angst v. Mack Trucks, Inc., 969 F.2d 1530 (3d Cir.1992); Fontenot v. NL Indus., Inc., 953 F.2d 960 (5th Cir.1992); Fludgate v. Management Technologies, Inc., 885 F.Supp. 645 (S.D.N.Y.1995); Tischmann v. ITT/Sheraton Corp., 882 F.Supp. 1358 (S.D.N.Y.1995), with Swinney v. General Motors Corp., 46 F.3d" }, { "docid": "2559520", "title": "", "text": "the operation of a benefit plan. Once this single event is over, the employer has no further responsibility. The theoretical possibility of a one-time obligation in the future simply creates no need for an ongoing administrative program for processing claims and paying benefits. Fort Halifax, 482 U.S. at 12, 107 S.Ct. 2211. Therefore, the main inquiry is whether the plan in question relies on an ongoing administrative process for implementation. Champagne, 997 F.Supp. at 221-222. The Court in Gilmore v. Silgan Plastics, 917 F.Supp. 685 (E.D.Mo.1996), elaborated on the Fort Halifax decision after considering it in the light of other federal court decisions. It outlined four factors to be considered when measuring the extent of ongoing administration for each severance scheme. These four elements include: (1) whether the payments are one-time, lump sum payments or continuous, periodic payments, (2) whether the employer is obligated over a prolonged or a limited time period, (3) whether the severance payments are triggered by a single event, such as a plant closing, or rather are continuous payments to be made generally to terminated employees, and (4) whether the severance “plan” requires the employer to engage in a case-by-case review of employees to determine their particular eligibility based on the applicable criteria. The last factor is frequently determinative. Id. at 688. Therefore, an inquiry into whether an employee welfare benefit plan may be classified as an ERISA plan requires a fact-intensive application of several factors, typically none of which on its own is determinative. Champagne, 997 F.Supp. at 222 (citing Belanger, 71 F.3d at 455). Rather, the existence of a plan turns on the nature and extent of an employer’s obligations, with Fort Halifax emphasizing the overall degree of burden placed on the employer. Rodowicz v. Mass. Mutual Life, 192 F.3d 162, 170 (1st Cir.1999) (citing Belanger, 71 F.3d at 454); Simas v. Quaker Fabric, 6 F.3d 849, 853-854 (1st Cir.1993). Thus, a proffered benefit scheme involving employer obligations not materially greater than those reflected in Fort Halifax does not amount to an ERISA plan. Belanger, 71 F.3d at 455. B The Original Plan RHI’s" } ]

[ { "docid": "11951469", "title": "", "text": "defendant had crossed the continent with this ear, and it was in his possession in San Francisco, that’he sold it as his property to Leong, and that it carried a false number, tended to prove the corpus delicti, and corroborates the defendant’s admission that it was a stolen ear, and that the officers “had him, and that was all there was to it.” We find the general rule to be as stated by Judge Learned Hand, in the Circuit Court of Appeals in the Second Circuit, Daeche v. United States, 250 F. 566, 571, 162 C. C. A. 582, 587: .“Any corroborating circumstances will serve which in the judge’s opinion go to fortify the truth of the confession. Independently they need not establish the truth of the corpus delicti at all, neither beyond a reasonable doubt nor by a preponderance of proof” —citing U. S. v. Williams, 1 Cliff. 5, 28 Fed. Cas. 636, No. 16,707; Flower v. U. S., 116 F. 241, 53 C. C. A. 271; People v. Badgley, 16 Wend. (N. Y.) 53; People v. Jaehne, 103 N. Y. 182, 199, 8 N. E. 374; Ryan v. State, 100 Ala. 94, 14 So. 868; People v. Jones, 123 Cal. 65, 55 P. 698. This rule was followed in this court in Mangum v. United States, 289 F. 213, 216, where we said: “Evidence aliunde, however, as to the corpus delicti, need not be such as to alone establish the fact beyond a reasonable doubt. It is sufficient if, when considered in connection with the confession, it satisfies the jury beyond a reasonable doubt that the offense was in fact committed, and the plaintiff in error committed it” — citing State v. Rogoway, 45 Or. 601, 78 P. 987, 81 P. 234, 2 Ann. Cas. 431; Flower v. U. S., 116 F. 241, 53 C. C. A. 271; Rosenfeld v. U. S., 202 F. 469, 120 C. C. A. 599. In the instant ease the court charged the jury: “The law presumes a defendant charged with crime innocent until proven guilty beyond a reasonable doubt. This presumption remains" } ]

[ { "docid": "118790", "title": "", "text": "1986); 1 C. Torcia, supra § 228. Courts have relied on circumstantial evidence in proving the corpus delicti for first degree murder in both federal and state court cases, including the Virgin Islands. See, e.g., Government of the Virgin Is lands v. Roldan, 612 F.2d 775, 781 (3d Cir.1979) (noting that a first degree murder conviction under the Virgin Islands Code may be based on circumstantial evidence; “indeed, premeditation generally can be proved only by such evidence”), cert. denied, 446 U.S. 920, 100 S.Ct. 1857, 64 L.Ed.2d 275 (1980); Government of the Virgin Islands v. Felix, 569 F.2d 1274, 1283 (3d Cir.1978) (upholding first degree murder conviction based upon testimony including defendant’s arguments and statements on the day of the shooting). Historically, the corpus delicti doctrine incorporated the “almost-universal American rule” that in order to convict a defendant of a crime based upon an extrajudicial confession or admission, the defendant’s statement must be corroborated by some evidence of the corpus delicti. W. LaFave & A. Scott, supra § 1.4. The major purpose of this rule is to prevent “errors in conviction based upon untrue confessions alone.” Warszower v. United States, 312 U.S. 342, 347, 61 S.Ct. 603, 606, 85 L.Ed. 876 (1941); see also Comments, Corroborating Confessions: An Empirical Analysis of Legal Safeguards Against False Confessions, 1984 Wis.L.Rev. 1121, 1155 (concluding that “physically un-coerced false confessions occur with sufficient regularity to justify prophylactic measures”). However, “[a] confession, especially one that survives the multiple attacks that can be made upon its admissibility, has traditionally been regarded as extraordinarily reliable evidence of the defendant’s guilt.” E. Cleary, McCormick on Evidence § 144 at 364 (3d ed. 1984 & Supp. 1987). Thus, the “high probative value” of a confession and the opportunities available to attack it at trial can support its admission into evidence. Id. Most jurisdictions today follow the original corpus delicti doctrine requiring proof aliunde (from another source) that a crime has occurred. However, the federal courts and a number of state courts have adopted the “trustworthiness” doctrine that emphasizes the reliability of the defendant’s confession over the independent evidence of" }, { "docid": "23007531", "title": "", "text": "required by law. Recognizing the rule requiring evidence of the corpus delicti independent of the confession, the court said: “The rule does not require that the independent evidence of corpus delicti shall be so full and complete as to establish unaided the commission of a crime. It is sufficient if the extrinsic circumstances, taken in connection with the defendant’s admission, satisfy the jury of the defendant’s guilt beyond a reasonable doubt. Bolland v. United States (C.C.A.) 238 F. 529, 530; Daeche v. United States (C.C.A.) 250 F. 566; Berryman v. United States (C.C.A.) 259 F. 208; Rosenfeld v. United States (C.C.A.) 202 F. 469; Mangum v. United States (C.C.A.) 289 F. 213.” [60 F. (2d) *4, at page 5] In Mangum v. United States (C.C.A.) 289 F. 213, involving a count of assault to commit rape and a count for rape, there was a confession, and it was contended that it was not supported by independent evidence of the corpus delicti. Recognizing that there must be evidence of the corpus delicti independent of the confession the court said: “Evidence aliunde, however, as to the corpus delicti, need' not be such as to alone establish the fact beyond a reasonable doubt. It is sufficient if, when considered in connection with the confession, it satisfies the jury beyond a reasonable doubt that the offense was in fact committed, and the plaintiff in error committed it. State v. Rogoway, 45 Or. 601, 78 P. 987, 81 P. 234 [2 Ann.Cas. 431]; Flower v. U. S., 116 F. 241, 53 C.C.A. 271; Rosenfeld v. U. S., 202 F. 469, 120 C.C.A. 599.” [289 F. at 216] In Flower v. United States (C.C.A.) 116 F. 241, involving a charge of embezzlement and a confession, there was again raised the question of the sufficiency of the proof of the corpus delicti. .The court there quoted, as a correct statement of the law, 6 Am. & Eng.Enc.Law (2d Ed.) p. 582: “A conviction cannot be had on the extrajudicial confession of the defendant, unless corroborated by proof aliunde of the corpus delicti. Full, direct, and positive evidence," }, { "docid": "23007532", "title": "", "text": "the court said: “Evidence aliunde, however, as to the corpus delicti, need' not be such as to alone establish the fact beyond a reasonable doubt. It is sufficient if, when considered in connection with the confession, it satisfies the jury beyond a reasonable doubt that the offense was in fact committed, and the plaintiff in error committed it. State v. Rogoway, 45 Or. 601, 78 P. 987, 81 P. 234 [2 Ann.Cas. 431]; Flower v. U. S., 116 F. 241, 53 C.C.A. 271; Rosenfeld v. U. S., 202 F. 469, 120 C.C.A. 599.” [289 F. at 216] In Flower v. United States (C.C.A.) 116 F. 241, involving a charge of embezzlement and a confession, there was again raised the question of the sufficiency of the proof of the corpus delicti. .The court there quoted, as a correct statement of the law, 6 Am. & Eng.Enc.Law (2d Ed.) p. 582: “A conviction cannot be had on the extrajudicial confession of the defendant, unless corroborated by proof aliunde of the corpus delicti. Full, direct, and positive evidence, however, of the corpus delicti, is not indispensable. A confession will be sufficient if there be such extrinsic corroborative circumstances as will, when taken in connection with the confession, establish the prisoner’s guilt in the minds of the jury beyond'a reasonable doubt.” [116 F. 241, at page 247] See also United States v. Boese (D.C.) 46 F. 917. Probably the most frequently quoted, and we think at times misquoted, case on the subject of corroboration of confessions is Daeche v. United States (C.C. A.) 250 F. 566, where the court spoke through Learned Hand, then District Judge. There the indictment was for a conspiracy maliciously to attack vessels in United States waters, with intent to despoil the owners of munitions, by attaching bombs to the sterns of the vessels in such wise, that they would explode and destroy the vessels or disable them. The defendant confessed his part in the plan, and the question whether or not there was sufficient evidence of the corpus delicti—the agreement to attack the ships—independent of the confession, was raised." }, { "docid": "22818029", "title": "", "text": "in themselves to prove his guilt and that in the absence of proof of the corpus delicti, a conviction of crime may not be based solely on the confessions or admissions of the defendant. This argument assumes that the net worth statements in themselves furnish no substantial evidence whatsoever of the corpus delicti in this case; but is not true, as we have seen. Moreover, the rule does not require that the corpus delicti be completely shown by evidence aliunde defendant’s confessions, but admits the confessions where other substantial evidence of the crime is shown, and thereupon both the statements of the defendant and the independent evidence must be taken into consideration by the jury in determining whether guilt is proven beyond a reasonable doubt. In Daeche v. U. S., 2 Cir., 250 F. 566, 571, cited with approval in Warszower v. U. S., 312 U.S. 342, 345, 61 S.Ct. 603, 85 L.Ed. 876, it was said: “ * * * The corroboration must touch the corpus delicti in the sense of the injury against whose occurrence the law is directed; in this case, an agreement to attack or set upon a vessel. Whether it must be enough to establish the fact independently and without the confession is not quite settled. Not only does this seem to have been supposed in some cases, but that the jury must be satisfied beyond a reasonable doubt of the corpus delicti without using the confessions, before they may consider the confessions at all. * * * But such is not the more general rule, which we are free to follow, and under which any corroborating circumstances will serve which in the judge’s opinion go to fortify the truth of the confession. Independently they need not establish the truth of the corpus delicti at all, neither beyond a reasonable doubt nor by a preponderance of proof.” See also, Yost v. U. S., 4 Cir., 157 F.2d 147, 150; Forte v. U. S., 68 App.D.C. 111, 94 F.2d 236. In this case there is substantial evidence outside of Bell’s statements to indicate his guilt. It" }, { "docid": "17611937", "title": "", "text": "means to do so by its reference to our decision in French v. United States, 5 Cir., 232 F.2d 736, 738 (see note 2, supra). The confusion which the Court finds happily lacking in the Fifth Circuit relates to the precise point here presented. Does corpus delicti for this crime include the third element of the identity of the defendant ? The Court now apparently thinks this was answered for all time in all cases in all crimes when, rejecting “the broad claim that to prove the corpus delicti the evidence aliunde the confession must establish every essential element of the offense charged including the connection of the accused with the crime, that is, his identity as the criminal,” we declared: “We do not at all agree. On the contrary, we share the view of most American courts that the phrase ‘corpus delicti’ includes but two elements: first, the fact of an injury or loss; and secondly, the fact of somebody’s criminality as the cause of the injury or loss. Furthermore, Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 99 L.Ed. 101, 45 A.L.R.2d 1308, makes it clear that corroborative evidence need not be sufficient, independent of the confessions of the accused, to establish these two elements which constitute the corpus delicti. * * * ” 232 F.2d at pages 736, 738. Perhaps as a two, not three, element Circuit we are free.from confusion. But I do not think we are free from error. For despite this positive declaration by French and the caustic comments of Wigmore that it is “too absurd to be argued with” the fact remains that the Supreme Court has expressly held that element three is included as to intangible crimes. Smith v. United States, 1954, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192. More than that an intangible crime encompasses transportation of stolen vehicles as the Court of Appeals held in Forte v. United States, 1937, 68 App.D.C. 111, 94 F.2d 236, 127 A.L.R. 1120. This case was expressly approved in Smith. How does this fit into this case ? IV." }, { "docid": "23354747", "title": "", "text": "the jury not to convict him merely on the admissions contained in his letters to the Director and General Counsel of the Selective Service System and in his statement to the FBI agents. Kerley appeals to the rule that requires proof of the “corpus delicti” of the crime, which is to say, proof — apart from the defendant’s confession or admissions — that a crime actually occurred. The rule is a vestige of a time when brutal methods were commonly used to extract confessions, sometimes to crimes that had not been committed, see generally Note, Proof of the Corpus Delicti Aliunde the Defendant’s Confession, 103 U.Pa.L.Rev. 638 (1955), though even in the bad old days confessions had (in principle at least) to be corroborated, see Langbein, Torture and the Law of Proof (1977). Never well adapted to its purpose (on which see id. at 13-14) of preventing the conviction of a person on the basis of an unreliable confession — since the crime might have occurred yet have been committed by someone other than the defendant — the corpus delicti rule no longer exists in the federal system, where the requirement is instead that there must be “substantial independent evidence which would tend to establish the trustworthiness of the statement.” Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954); see also United States v. Roth, 777 F.2d 1200, 1206 (7th Cir.1985); 2 Wright, Federal Practice and Procedure § 414, at pp. 515-17 (2d ed. 1982); see generally McCormick on Evidence § 145 (Cleary 3d ed. 1984). This requirement is easily met in a case such as the present, which does not involve arrest, interrogation, and confession. Kerley’s admissions were proudly volunteered, many of them before he was threatened with prosecution. And certainly the failure to give an instruction on corroboration could not have been plain error (Kerley had not requested such an instruction), since Kerley’s admissions were well corroborated by the Selective Service System’s two searches of its files, which turned up no registration by him. Of course, as Kerley points out, the" }, { "docid": "23218156", "title": "", "text": "v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954). They argue that the corpus delicti of the crime must be established by independent evidence including the appellants’ connection with the crime before their statements may be admitted. This argument is foreclosed by this Court’s statement in French v. United States, 5 Cir. 1956, 232 F.2d 736, cert. denied 352 U.S. 851, 77 S.Ct. 73, 1 L.Ed. 2d 62 (1956): “[1-6] Appellant first contends that it was error to convict him upon confessions uncorroborated by proof of the corpus delicti. He makes the broad claim that to prove the corpus delicti the evidence aliunde the confession must establish every essential element of the offense charged including the connection of the accused with the crime, that is, his identity as the criminal. We do not at all agree. On the contrary, we share the view of most American courts that the phrase ‘corpus delicti’ includes but two elements: first, the fact of an injury or loss; and secondly, the fact of somebody’s criminality as the cause of the injury or loss. Furthermore, Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 99 L.Ed. 101, 45 A.L.R.2d 1308, makes it clear that corroborative evidence need not be sufficient, independent of the confessions of the accused, to establish these two elements which constitute the corpus delicti. Indeed, it is necessary only for the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the confession. And when this requirement is met, such independent evidence thus serves the dual function of tending to make the confession reliable, while also establishing independently the other necessary elements of the crimes charged. It is therefore sufficient if the corroboration supports the facts sufficiently to justify a jury inference of their truth. Those facts plus the other evidence besides the confessions must, of course, be sufficient to find guilt beyond a reasonable doubt.” [Original emphasis] See also: Mills v. United States, 5 Cir. 1967, 380 F.2d 335, 336; Landsdown v. United States, 5 Cir. 1965, 348 F.2d 405, 409;" }, { "docid": "123316", "title": "", "text": "of admitting a crime. True, the witnesses were also involved in the criminal acts, and to that extent, perhaps, not entitled to as full credence as might otherwise prevail. Their accounts, however, of the several transactions, together with their statements that they expected to be punished for their offenses, as though they had not given testimony, the many facts above recited, and the numerous earmarks of truth which attend them — the whole evidence considered — constitute convincing evidence of their veracity. The extrinsic corroborating circumstances set out in the record in our judgment are sufficient to establish the truth of defendant’s declarations to the several witnesses, even though those declarations be taken as confessions. Thus the corpus delicti is clearly established. “A conviction cannot be had on the extrajudicial confession of the defendant, unless corroborated by proof aliunde of the corpus delicti. Full, direct, and positive evidence, however, of the corpus delicti is not indispensable. A confession will be sufficient if there be such extrinsic corroborative circumstances as will, when taken in connection with the confession, establish the prisoner’s guilt in the minds of the jury beyond a reasonable doubt.” Flower v. United States, 110 Fed. 241, 53 C. C. A. 271; 6 Am. & Eng. Ency. of Law (2d Ed.) p. 582; Bines v. State, 118 Ga. 320, 45 S. E. 376, 68 L. R. A. 33. We approve of the statement of the law and have given defendant the benefit of it. The evidence adduced, as shown by the record, to sustain the two counts of the indictment upon which trial was had, is ample to sustain the verdict of the jury. We find no error in the proceedings which might prejudice the defendant — certainly not after verdict rendered. The judgment of the district court is therefore affirmed." }, { "docid": "15843984", "title": "", "text": "509, 69 L.Ed. 1158: “A conspiracy may be established by circumstantial evidence or by deduction from facts. The common design is the essence of the crime, and this may be made to appear when the parties steadily pursue the same object, whether acting separately or together, by common or different means, but ever leading to the same unlawful result. If the parties acted together to accomplish something unlawful, a conspiracy is shown, even though individual conspirators may have done acts in furtherance of the common unlawful design apart from and unknown to the others. All of the conspirators need not be acquainted iwith each other. They may not have previously associated together. One defendant may know but one other member of the conspiracy. But if, knowing that others have combined to violate the law, a party knowingly co-operates to further the object of the conspiracy, he becomes a party thereto.” A conspiracy, like any other crime, can only be established by the various external manifestations of the parties • — the acts and conduct and declarations or statements of third persons, taken together with the acts and conduct and declarations or statements of the defendants. Garhart v. United States, 10 Cir., 1946, 157 F.2d 777, 780-781. This does not mean that the existence of the conspiracy may be proved solely by the declarations or statements of the' defendants themselves, for these might fall into the field of extra-judicial admissions and so require corroboration. Since conspiracy is the criminal offense charged, there must be some corroborating evidence of the existence of this corpus delicti aliunde the extra-judicial statements or declarations of the accused, United States v. Di Orio, 3 Cir., 1945, 150 F.2d 938, 940, certiorari denied, 1945, 326 U.S. 771, 66 S.Ct. 175, 90 L.Ed. 465; Anderson v. United States, 6 Cir., 1941, 124 F.2d 58, 65-66 reversed on other ground, 1943, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829; Cummings v. United States, 9 Cir., 1926, 15 F.2d 168, 169; cf. Wiggins v. United States, 9 Cir., 1933, 64 F.2d 950, 951-952, certiorari denied, 1933, 290 U.S. 657," }, { "docid": "22661614", "title": "", "text": "Takahashi v. United States, 143 F. 2d 118, 122. Moreover, we held in Opper v. United States, 348 U. S. 84, 92, that even where exculpatory statements are voluntary and thus clearly admissible, they require at least the degree of corroboration required of incriminating statements. For the history and development of the corroboration requirement, see 7 Wigmore, Evidence (3d ed. 1940), §§2070-2071; Note, Proof of the Corpus Delicti Aliunde the Defendant’s Confession, 103 U. of Pa. L. Rev. 638-649 (1955). For the present scope and application of the rule, see 2 Underhill, Criminal Evidence (5th ed. 1956), §§ 402-403. For a comprehensive collection of cases, see Annot., 45 A. L. R. 2d 1316 (1956). Where the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable. A notable example is the principle that an admission of homicide must be corroborated by tangible evidence of the death of the supposed victim. See 7 Wigmore, Evidence (3d ed. 1940), §2072, n. 5. There need in such a case be no link, outside the confession, between the injury and the accused who admits having inflicted it. But where the crime involves no tangible corpus delicti, we have said that “the corroborative evidence must implicate the accused in order to show that a crime has been committed.” 348 U. S., at 154. Finally, we have said that one uncorroborated admission by the accused does not, standing alone, corroborate an unverified confession. United States v. Calderon, 348 U. S. 160, 165. See Developments in the Law — Criminal Conspiracy, 72 Harv. L. Rev. 922, 989-990 (1959). Cf. Williams, The Proof of Guilt (1958), 135: “Even where . . . the evidence of an accomplice becomes admissible against his fellows, it remains suspect evidence, because of the tainted source from which it comes. The accomplice may no longer have anything to fear or hope from the way in which he gives his evidence; yet he may mistakenly entertain such a fear or hope," }, { "docid": "22471037", "title": "", "text": "prior to the commission of the alleged offense. Such admissions need not be corroborated. Warszower v. United States, 312 U.S. 342, 347, 61 S.Ct. 603, 85 L.Ed. 876. This court has held that it is unnecessary to make full proof of the corpus delicti independently of the defendant’s confessions. Wynkoop v. United States, 9 Cir., 22 F.2d 799; Wiggins v. United States, 9 Cir., 64 F.2d 950, certiorari denied 290 U.S. 657, 54 S.Ct. 72, 78 L.Ed. 569. The corroborative evidence need not independently establish the corpus delicti beyond a reasonable doubt. It is sufficient if the corroborative evidence, when considered in connection with the confession or admission, satisfied the jury beyond a reasonable doubt that the offense was in fact committed. In Pearlman v. United States, 9 Cir., 10 F.2d 460, this court indicated that the usual instructions on presumption of innocence and reasonable doubt adequately covered all that the jury need be told upon this question of sufficiency of proof of the corpus delicti. We find no error in the court’s failure to give the requested instruction mentioned. 9. Questions relating to duress. Appellant asserts that the trial court committed numerous errors relating to the claimed defense of duress or coercion. She argues that some of the instructions given upon this subject were erroneous; that other instructions requested by her should have been given, and that the court erred in excluding numerous items of evidence which were offered in support of this defense. The court instructed the jury at length upon the defense that the criminal act was not committed voluntarily but was the result of coercion, compulsion or necessity. The instruction included the state ment that “in order to excuse a criminal act on the ground of coercion, compulsion or necessity, one must have acted under the apprehension of immediate and impending death or of serious and immediate bodily harm. Fear of injury to one’s property or remote bodily harm do not excuse an offense.” It will be noted that the court’s instruction was almost identical to that approved in Gillars v. United States, supra, 182 F.2d" }, { "docid": "23007538", "title": "", "text": "Judge Hand’s opinion. In Forlini v. United States (C.C.A.) 12 F.(2d) 631, 634, in an opinion by Mantón, Circuit Judge, in which Judge Hand concurred, Daeche v. United States is referred to in a manner which, in our view, makes clear that it was intended to hold therein that in addition to a confession there must be “some independent proof of the corpus delicti.” The opinion in Pearlman v. United States is further confused by including the quotation set out supra from Mangum v. United States, which clearly requires some evidence of the corpus delicti aliunde the confession. On the¡ evidence in the Pearlman Case, which was slight indeed, independent of the confession, so far as the corpus delicti was concerned, the case may be said to hold that the evidence, independent of a confession, need not touch the corpus delicti at all. But if the case so holds, we are unwilling to follow it. In Wynkoop v. United States (C.C.A.) 22 F.(2d) 799, where the defendant, a prohibition agent, was indicted for converting to his own use liquor of which he had come into possession officially, and where there were admissions by the defendant, the court, partially quoting as did the court in the Pearl- man Case, Judge Hand’s opinion in Daeche v. United States, apparently intended to rule that any corroborating circumstances which fortify the truth of a confession will suffice for conviction, even if they do not, independently, touch the corpus delicti. But again we think this decision does not correctly reflect the views of Judge Hand in the Daeche Case, and we cannot follow it. In Bolland v. United States (C.C.A.) 238 F. 529, where the defendant was charged with knowingly receiving in pledge from a soldier property of the United States, and there was a confession, and a contention that the corpus delicti had not been established by evidence independent of the confession, the court apparently intended to rule that “All that can be required is that there should be corroborative evidence tending to prove the facts embraced in the confession; . . This was" }, { "docid": "8109055", "title": "", "text": "theft of a pickup truck from a parking lot near the jail. See Smith v. United States, 9 Cir., 1949, 173 F.2d 181. Appellant insists- that the written confession and other admissions introduced in evidence were not voluntary and thus not admissible. Whether or not such extra-judicial statements are voluntary is a preliminary question of fact to be determined by the trial judge. The judge found that the admissions and confessions were voluntary, and a careful review of the record leads us to the conclusion that the trial court committed no error in allowing the introduction of the evidence. Of course, the weight and credibility ultimately to be given the statements were questions for the jury, who obviously believed them. Next, appellant insists that even if the confession were voluntary, there was no corroborating evidence to support the conviction. However, the corroborating evidence need not, in itself, be sufficient to establish the corpus delicti; it is necessary only that there be substantial independent evidence which would tend to establish the trustworthiness of the statement. Opper v. United States, 1954, 348 U.S. 84, 93, 75 S.Ct. 158, 99 L.Ed. 101, 45 A.L.R.2d 1308. We find in the record sufficient independent evidence introduced by the government to support the jury’s verdict of guilty. The cases cited by appellant to illustrate circumstances in which there was not enough evidence to support a verdict of guilty are clearly distinguishable; in none of them was there a confession. Finally, appellant urges that the court below committed error in giving the supplementary charge one hour and five minutes after the jury had begun deliberation. No exception was taken to this charge at the trial below. The charge followed closely the language of that approved in Allen v. United States, 1896, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528. Powell v. United States, 5 Cir., 1962, 297 F.2d 318, does not disapprove the “Allen” charge, but cautions against its misuse. Even if there had been objection, we think that the charge was in no manner erroneous. In any event, we do not agree that the charge" }, { "docid": "8138842", "title": "", "text": "appellant did know from the information he had when he purchased them that the price he was paying was disproportionate to their value. The jury could and properly, did consider and weigh the significance of appellant’s visits to Amdursky and the transaction between them followed immediately by the purchase of the stolen goods from a United States Marine private in uniform obviously somewhat under the influence of liquor. Also the sale of the pens and watches to Amdursky right after the purchase from Scott. We agree with the Government that appellant was not “acting in the dark” on the question of value. The inference is inescapable that Amdursky had advised and informed appellant concerning the real value of the pens and watches prior to their purchase from Scott. Appellant did not testify dr offer any explanation of this action in “consulting” his fsiend Amdursky. All of this is made more apparent by the fact that on May 25, 1945, appellant, freely and voluntarily, made a written statement in the nature of a confession in the presence of a San Francisco police officer and a member of the F. B. I. The confession was introduced in evidence over the objection of appellant that the corpus de-licti, that is, the knowledge required by Section 87' had not been established by independent evidence and therefore the document was incompetent, irrelevant and immaterial. We think that the Government did show corroborative independent circumstances tending to prove the’corpus delicti and to fortify the truth of the written confession. It was properly admitted. See Pearlman v. United States, 9 Cir., 10 F.2d 460; Mangum v. United States, 9 Cir., 289 F. 213, 216; Wynkoop v. United States, 9 Cir., 22 F.2d 799; Wiggins v. United States, 9 Cir., 64 F.2d 950; Chevillard v. United States, 9 Cir., 155 F.2d 929. The order in which evidence to prove the corpus delicti is to be received is not important and is largely a matter within the discretion of the trial court. If proof in the nature of independent corroborative evidence supports the introduction of a confession, ’ the" }, { "docid": "22471036", "title": "", "text": "for their bearing as circumstantial evidence upon her intent. By its terms the instruction would apply to every oral or written statement attributed to the appellant by any witness. In such form it was properly rejected. 8. Requested instruction concerning proof of corpus delicti. Another instruction requested by appellant and which bore upon the appellant’s admissions or so-called confessions, was defendant’s proposed instruction No. 30a as follows: “You cannot consider the defendant’s admissions upon any of the issues of (1) citizenship (2) aid and comfort or (3) intention unless you first find that the Government has introduced other credible corroborative evidence on the same issue. Pearlman v. U. S., 10 F.2d 460, 461, 462 (CCA 9). Goff v. U. S., 257 F. 294 (CCA 8).” We think there was no occasion for giving any such instruction here where there was substantial proof of the corpus delicti wholly apart from the admissions or confessions. The reference to the admissions relative to citizenship was erroneous for some of the appellant’s admissions reíative to her citizenship were made prior to the commission of the alleged offense. Such admissions need not be corroborated. Warszower v. United States, 312 U.S. 342, 347, 61 S.Ct. 603, 85 L.Ed. 876. This court has held that it is unnecessary to make full proof of the corpus delicti independently of the defendant’s confessions. Wynkoop v. United States, 9 Cir., 22 F.2d 799; Wiggins v. United States, 9 Cir., 64 F.2d 950, certiorari denied 290 U.S. 657, 54 S.Ct. 72, 78 L.Ed. 569. The corroborative evidence need not independently establish the corpus delicti beyond a reasonable doubt. It is sufficient if the corroborative evidence, when considered in connection with the confession or admission, satisfied the jury beyond a reasonable doubt that the offense was in fact committed. In Pearlman v. United States, 9 Cir., 10 F.2d 460, this court indicated that the usual instructions on presumption of innocence and reasonable doubt adequately covered all that the jury need be told upon this question of sufficiency of proof of the corpus delicti. We find no error in the court’s failure to" }, { "docid": "8138843", "title": "", "text": "presence of a San Francisco police officer and a member of the F. B. I. The confession was introduced in evidence over the objection of appellant that the corpus de-licti, that is, the knowledge required by Section 87' had not been established by independent evidence and therefore the document was incompetent, irrelevant and immaterial. We think that the Government did show corroborative independent circumstances tending to prove the’corpus delicti and to fortify the truth of the written confession. It was properly admitted. See Pearlman v. United States, 9 Cir., 10 F.2d 460; Mangum v. United States, 9 Cir., 289 F. 213, 216; Wynkoop v. United States, 9 Cir., 22 F.2d 799; Wiggins v. United States, 9 Cir., 64 F.2d 950; Chevillard v. United States, 9 Cir., 155 F.2d 929. The order in which evidence to prove the corpus delicti is to be received is not important and is largely a matter within the discretion of the trial court. If proof in the nature of independent corroborative evidence supports the introduction of a confession, ’ the time of its introduction is not important. It is sufficient if it is forthcoming at some point in the trial. All of the evidence in this case on which the Government relied was properly connected before the Government closed its case. During the course of the trial several objections were made to the admission of testimony as to what was said in conversations of officers with appellant and Amdursky regarding the purchase of the pens and watches. These objections were also rested on the ground that at the time the proof was offered the Government had not established the corpus delicti by any independent evidence, particularly as it related to the element of knowledge required by section 87. What we have said above disposes of this objection. These conversations, admitted in evidence,, together with the written confession of appellant, when considered in connection with-the rest of the evidence and testimony in the case, clearly support an inference of “guilty knowledge” on the part of appellant,, i.e., that he did “knowingly apply to his own use”" }, { "docid": "23007537", "title": "", "text": "proofs 'of the government measure up to the rule that there must be testimony tending to prove the corpus delicti independent of any confession of defendant.” Notwithstanding this implied recognition of the rule in terms of the statement of the question, the court found the law to be as expressed in a partial quotation of the remarks of Judge Learned Hand above. The Pearlman opinion states: “We find the general rule to be as stated by Judge Learned Hand, in . Daeche v. United States . . . : “ ‘Any corroborating circumstances will serve which in the judge’s opinion go to 'fortify the truth of the confession. Independently they need not establish the truth of the corpus delicti at all, neither beyond a reasonable doubt nor by a preponderance of proof’ . . [10 F. (2d) 460, at page 462] That partial quotation from Judge Hand might well seem to indicate that the corroborating evidence need not touch the corpus delicti. But that sentence alone, we think, does not reflect the true meaning of Judge Hand’s opinion. In Forlini v. United States (C.C.A.) 12 F.(2d) 631, 634, in an opinion by Mantón, Circuit Judge, in which Judge Hand concurred, Daeche v. United States is referred to in a manner which, in our view, makes clear that it was intended to hold therein that in addition to a confession there must be “some independent proof of the corpus delicti.” The opinion in Pearlman v. United States is further confused by including the quotation set out supra from Mangum v. United States, which clearly requires some evidence of the corpus delicti aliunde the confession. On the¡ evidence in the Pearlman Case, which was slight indeed, independent of the confession, so far as the corpus delicti was concerned, the case may be said to hold that the evidence, independent of a confession, need not touch the corpus delicti at all. But if the case so holds, we are unwilling to follow it. In Wynkoop v. United States (C.C.A.) 22 F.(2d) 799, where the defendant, a prohibition agent, was indicted for converting to" }, { "docid": "15843985", "title": "", "text": "declarations or statements of third persons, taken together with the acts and conduct and declarations or statements of the defendants. Garhart v. United States, 10 Cir., 1946, 157 F.2d 777, 780-781. This does not mean that the existence of the conspiracy may be proved solely by the declarations or statements of the' defendants themselves, for these might fall into the field of extra-judicial admissions and so require corroboration. Since conspiracy is the criminal offense charged, there must be some corroborating evidence of the existence of this corpus delicti aliunde the extra-judicial statements or declarations of the accused, United States v. Di Orio, 3 Cir., 1945, 150 F.2d 938, 940, certiorari denied, 1945, 326 U.S. 771, 66 S.Ct. 175, 90 L.Ed. 465; Anderson v. United States, 6 Cir., 1941, 124 F.2d 58, 65-66 reversed on other ground, 1943, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829; Cummings v. United States, 9 Cir., 1926, 15 F.2d 168, 169; cf. Wiggins v. United States, 9 Cir., 1933, 64 F.2d 950, 951-952, certiorari denied, 1933, 290 U.S. 657, 54 S.Ct. 72, 78 L.Ed. 569; 3 Wigmore, Evidence § 821 (3d ed. 1940), 7 Id. §§ 2070-2071; 2 Wharton, Criminal Evidence §§ 640-641 (11th ed. 1935), except in cases where the incriminatory statements or declarations of the accused were made “prior to the crime,” or themselves constitute the offense or an essential element thereof. See Warszower v. United States, 1941, 312 U.S. 342, 347-348, 61 S.Ct. 603, 85 L.Ed. 876; cf. Yost v. United States, 4 Cir., 1946, 157 F.2d 147; Tabor v. United States, 4 Cir., 1945, 152 F.2d 254. But there is no necessity to consider here whether an alleged statement or declaration of a defendant should be classed as a declaration before the occurrence of the crime, or as a statement constituting the crime, for there is abundant evidence aliunde declarations of the accused which, if believed, would be sufficient to show the existence of the conspiracy. See Glasser v. United States, supra, 315 U.S. at 80-81, 62 S.Ct. 457, 86 L.Ed. 680; Carlson v. United States, 10 Cir., 1951, 187" }, { "docid": "10069249", "title": "", "text": "victory.” A conspiracy must usually be proven, if at all, by circumstantial evidence. Galatas v. United States, supra. If there is a concert of purpose, it is not necessary that there be a participation by each conspirator in every detail of its execution. Galatas v. United States, supra; Rand v. United States, 8 Cir., 77 F.2d 52; Feigenbutz v. United States, 8 Cir., 65 F.2d 122; Goode v. United States, 8 Cir., 58 F.2d 105; Luteran v. United States, 8 Cir., 93 F.2d 395; McDonald v. United States, 8 Cir., 89 F.2d 128; Smith v. United States, 8 Cir., 157 F. 721. It is urged by appellant that without the statements and admissions made by her, there was not sufficient or substantial evidence to prove the corpus delicti. It is her contention that these statements and admissions can be given no consideration whatever so far as proof of the corpus delicti is concerned. It is true that the corpus delicti can not be established by such admissions or concessions alone. They must be corroborated by independent proof. However, such independent proof need not be strong enough in itself to establish the corpus delicti. Oldstein v. United States, 10 Cir., 99 F.2d 305, filed Oct. 14, 1938. As said by us in Tingle v. United States, 8 Cir., 38 F.2d 573, 575, “But in conspiracy cases, the unlawful combination, confederacy, and agreement between two or more persons, that is, (lie conspiracy itself, is the gist of the action, and is the corpus delicti charged.” In the instant case, as we have already observed, it is admitted by counsel for appellant that the conspiracy alleged in the indictment was established by substantial evidence. That, we take it, established the corpus delicti in this case. The identity of the accused is not an element of the corpus delicti, and while extra judicial admissions or confessions of an accused are not of themselves sufficient to establish the corpus delicti, yet they may be considered in connection with other independent evidence in determining whether the corpus delicti has been proven and such evidence may in" }, { "docid": "23007530", "title": "", "text": "the record before us any substantial independent evidence of the corpus delicti, that is, the conspiracy charged, tending to corroborate the extrajudicial statements and admissions of appellant.” [38 F.(2d) 573, at page 575] Holding that the evidence in the case, outside the defendant’s statement, was insufficient to satisfy the rule stated, the court reversed a conviction. In Jordan v. United States (C.C.A.) 60 F.(2d) 4, certiorari denied 287 U.S. 633, 53 S.Ct. 84, 77 L.Ed. 549, where the defendant was charged with perjury by making a false affidavit before a notary, it was objected that there was no direct evidence that he actually took the oath before the notary, and it was contended therefore “that the evidence does not satisfy the rule that in a criminal case the corpus delicti is not proved by an extrajudicial admission of confession of the defendant^, but must be supported by independent evidence.” But the notary’s jurat itself had been introduced and it tended to show that the oath had been duly administered to the defendant in person as required by law. Recognizing the rule requiring evidence of the corpus delicti independent of the confession, the court said: “The rule does not require that the independent evidence of corpus delicti shall be so full and complete as to establish unaided the commission of a crime. It is sufficient if the extrinsic circumstances, taken in connection with the defendant’s admission, satisfy the jury of the defendant’s guilt beyond a reasonable doubt. Bolland v. United States (C.C.A.) 238 F. 529, 530; Daeche v. United States (C.C.A.) 250 F. 566; Berryman v. United States (C.C.A.) 259 F. 208; Rosenfeld v. United States (C.C.A.) 202 F. 469; Mangum v. United States (C.C.A.) 289 F. 213.” [60 F. (2d) *4, at page 5] In Mangum v. United States (C.C.A.) 289 F. 213, involving a count of assault to commit rape and a count for rape, there was a confession, and it was contended that it was not supported by independent evidence of the corpus delicti. Recognizing that there must be evidence of the corpus delicti independent of the confession" } ]

[ { "docid": "3651528", "title": "", "text": "to have an attorney present. Any determination, then, that appellant’s statement was coerced, will have to be made by examining the totality of the circumstances surrounding the interrogation. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The prosecution must prove by a preponderance of the evidence that appellant’s statement was rendered knowingly and voluntarily. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972); United States v. Little Bear, 583 F.2d 411 (8th Cir.1978). The record shows that appellant was a high school graduate. He was employed and attending vocational school at the time of his arrest. The questioning occurred in an FBI office, in typical office surroundings. For very short periods of time there were three agents present, but for the majority of the interrogation, there were only two FBI agents in the room with appellant. No threats or promises were made; appellant testified at the suppression hearing that he didn’t feel threatened. Appellant never asked to have the questioning ceased. He asked to make a phone call after he signed the statement; this was allowed. He then called his brother and talked for some 18 minutes. Appellant also testified that he had been drinking brandy and cola earlier in the day, but he didn’t appear to any of the agents to be intoxicated or disoriented. Custodial statements are not per se involuntary because of intoxication. United States v. Brown, 535 F.2d 424, 427 (8th Cir.1976); United States v. Harden, 480 F.2d 649, 651 (8th Cir.1973). The standard is whether, by reason of intoxication or other factors, the defendant’s “will was overborne” or whether his statements were the “product of a rational intellect and a free will.” United States v. Brown, 535 F.2d at 427 (quoting Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963)). The district court found that appellant’s constitutional rights were intact and that he gave his statement voluntarily. After presentation of the evidence at the suppression hearing, the trial judge ruled from the bench: THE COURT: All" } ]

[ { "docid": "7500792", "title": "", "text": "499 U.S. 941, 111 S.Ct. 1400, 113 L.Ed.2d 455 (1991). While § 3501 provides the statutory guidance for determining the voluntariness of a confession, the constitutional test for voluntariness, as articulated by the Eighth Circuit, is whether \"in light of the totality of the circumstances pressures exerted upon the suspect have overborne his will.\" United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir.1989) (citing Haynes v. Washington, 373 U.S. 503, 513-14, 83 S.Ct. 1336, 1342-44, 10 L.Ed.2d 513 (1963)); Winfrey v. Wyrick, 836 F.2d 406, 410 (8th Cir.1987), cert. denied, 488 U.S. 833, 109 S.Ct. 91, 102 L.Ed.2d 67 (1988); United States v. Rohrbach, 813 F.2d 142, 144, cert. denied, 482 U.S. 909, 107 S.Ct. 2490, 96 L.Ed.2d 381 (1987); see also, United States v. Kilgore, 58 F.3d 350, 353 (8th Cir. 1995); United States v. Makes Room for Them, 49 F.3d 410, 414-15 (8th Cir.1995); Rachlin v. United States, 723 F.2d 1373, 1377 (8th Cir.1983). Two factors must be considered in the voluntariness inquiry: the conduct of the law enforcement officers and the capacity of the suspect to resist pressure to confess. Kilgore, 58 F.3d at 353; Makes Room for Them, 49 F.3d at 415; Jorgensen, 871 F.2d at 729; Rohrbach, 813 F.2d at 144; see also, Winfrey, 836 F.2d at 410; United States v. Wilson, 787 F.2d 375, 386 (8th Cir.), cert. denied, 479 U.S. 857, 107 S.Ct. 197, 93 L.Ed.2d 129 (1986). Although ultimately declining to decide the issue, the Eighth Circuit has suggested that \"perhaps something more is required under § 3051(b) [sic] than is required by the Due Process Clause\". United States v. Bartlett, 856 F.2d 1071, 1085 (8th Cir.1988). Nevertheless, in the context of determining the voluntariness of a statement, the Eighth Circuit has \"considered [a] district court's findings in light of the § 3501 factors as well as the requirements of due process,\" stating that \"the voluntariness inquiry is based on 18 U.S.C. § 3501 as well as due process.\" Casal, 915 F.2d at 1228, n. 3. It appears that a reviewing court must consider constitutional and well as statutory factors to" }, { "docid": "13324606", "title": "", "text": "a statement on a videotape. The officers once again advised him of his constitutional rights and again he waived them. After repeating his confession on the videotape, he was arrested. He also made inculpatory statements while in his jail cell. The state trial court suppressed all statements Battle made before the audiotape statement and those made after the videotape confession, but admitted into evidence the audiotape and videotape. The district court found that the state trial court did not err in admitting the confessions on the audiotape and videotape bécause the officer’s testimony, the execution of the waiver form, the transcripts of both tapes, and Battle’s trial testimony “clearly show he was given multiple Miranda warnings and repeatedly waived them.” In determining whether a defendant confessed involuntarily, a reviewing court must examine the entire record to determine if the accused was coerced or his will was overborne. United States v. Wilson, 787 F.2d 376, 380-81 (8th Cir.), cert. denied, 479 U.S. 857, 107 S.Ct. 197, 93 L.Ed.2d 129 (1986). The court must consider the totality of circumstances, including the specific interrogation tactics employed, the details of the interrogation, and the characteristics of the accused. Id. The court must consider the confession in light of the age of the defendant, his level of education and intelligence, and the length of the questioning. Schneckloth v. Bustamante, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). However, we presume factual questions answered by the state trial court such as “whether the police in fact engaged in the intimidation tactics alleged by defendant” are correct. Hill v. Lockhart, 927 F.2d 340, 346 (8th Cir.) (quoting Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985)), cert. denied, — U.S.-, 112 S.Ct. 344, 116 L.Ed.2d 283 (1991). Coercive police pressure is a predicate to the finding that the confession is not voluntary and violates an accused’s due process rights. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 521, 93 L.Ed.2d 473 (1986). We reject Battle’s contention that his confession was involuntary and violated his due" }, { "docid": "7445506", "title": "", "text": "20, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). To merit habeas corpus relief, Simmons must prove he involuntarily made his statement to law enforcement officials. Jenner v. Smith, 982 F.2d 329, 333 (8th Cir.1993). A statement is involuntary when it was extracted by threats, violence, or express or implied promises sufficient to overbear the defendant’s will and critically impair his capacity for self-determination. United States v. Pierce, 152 F.3d 808, 812 (8th Cir.1998). In applying this test, we look at the totality of the circumstances surrounding the interroga tion, including law enforcement officials’ conduct and the defendant’s capacity to resist any pressure. Id. Specifically, we consider factors such as detention length, the repetitive and prolonged nature of questioning, and the accused’s age. Bramlett v. Lockhart, 876 F.2d 644, 646 (8th Cir.1989). We find that the questioning tactics in the present case were not improperly coercive. Officers may elicit statements by claiming not to believe the accused’s denials. Jenner, 982 F.2d at 334. Tactics such as deception and raised voices do not render a confession involuntary unless the overall impact of the interrogation caused the defendant’s will to be overborne. Id. Questioning a suspect for six or seven hours is not unconstitutionally coercive per se. Id. We do not find the period of interrogation in the present ease-approximately two hours-to be particularly lengthy. Cf. id. Furthermore, although it may have taken up to two hours for Simmons to make a statement implicating himself in the murder of Mrs. Crook, he waived his rights at the beginning of questioning and did not later assert them. Although a promise made by law enforcement is a relevant consideration in assessing police conduct, it is only one circumstance to be considered and does not render a confession involuntary per se. Larry, 126 F.3d at 1079; United States v. Kilgore, 58 F.3d 350, 353 (8th Cir.1995) (indicating that even if the suspect had been promised some form of leniency, this circumstance alone would not render his confession involuntary). The statement to an accused that telling the truth “would be better for him” does not constitute an" }, { "docid": "1278232", "title": "", "text": "free from any coercion or deception, and “with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979)). We find nothing in the record to suggest that Russell’s waiver did not meet this standard. Although Russell does possess limited verbal skills, there was no evidence to suggest that he could not comprehend why he was being questioned and the probable results of that questioning. Further, there were no findings of police misbehavior. The issue of the voluntariness of Russell’s confession is a legal inquiry requiring plenary review. See Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). The situation must be evaluated in light of the totality of the circumstances, “considering the specific interrogation tactics employed, the details of the interrogation, and the characteristics of the accused.” 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 (1986). Additionally, a confession may not be found to have been involuntary absent a showing of coercive police activity. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986). Again, after reviewing the evidence concerning Russell’s interrogation, we are unable to conclude that the police engaged in inappropriate conduct. Russell failed to show that his statements were prompted by any improper threats, promises, or actions by the interrogating officers. The confession was thus properly allowed into evidence at trial. II. We next consider Russell’s sixth amendment ineffective assistance of counsel claims. His first claim is that his two brothers were willing and able to testify as to an alibi defense, but that his attorney negligently failed to utilize this course of action. Both brothers testified before the district court that Russell’s normal routine was to return from school, do his chores, attend practice with a local garage band, and arrive" }, { "docid": "7500795", "title": "", "text": "`coercion brought to bear on the defendant by the [Government].'\" Sidebottom v. Delo, 46 F.3d 744, 758 (8th Cir.), cert. denied, — U.S. —, 116 S.Ct. 144, 133 L.Ed.2d 90 (1995) (quoting Rohrbach, 813 F.2d at 144); see also, Jenner v. Smith, 982 F.2d at 333-34. The burden of proof on the issue of voluntariness is one of a preponderance of the evidence. Connelly, 479 U.S. at 168-69, 107 S.Ct. at 522-23; United States v. Wright, 706 F.2d 828, 830 (8th Cir.1983). To be admissible, the Government must establish by a greater weight of the evidence that a defendant's confession was voluntarily made. In other words, it must prove that the defendant's confession was more likely than not voluntarily given. See Manual of Modern Federal Jury Instructions For The District Courts of The Eighth Circuit, § 3.04 at 37 (1995 ed.); 3 E. Devitt, C. Blackmar & M. Wolff, Federal Jury Practice and Instructions (Civil), § 72.01 at 31-32, (4th ed. 1987 & Supp.1995). Although not altogether clear, it appears that one of Bad Hand’s arguments is that his incriminatory statements were involuntary because he is of a borderline intelligence level and is therefore peculiarly susceptible to having his will overborne. Yet, in cases the same or similar to the one at hand, the Eighth Circuit and other courts of appeal have held the confessions were voluntary. Makes Room For Them, 49 F.3d at 412-15 (defendant with average or lower than average intelligence and an eighth grade education); Chischilly, 30 F.3d at 1147-48, 1151 (defendant with a verbal IQ of approximately 62 and a functional level of a five or six-year-old child); United States v. Frank, 956 F.2d 872, 875-78 (9th Cir.1991) (defendant with \"low average\" intelligence who suffered from relatively mild depression), cert. denied, 506 U.S. 932, 113 S.Ct. 363, 121 L.Ed.2d 276 (1992); Derrick v. Peterson, 924 F.2d 813, 815-19 (9th Cir.1990) (defendant with an IQ of between 62 and 74 in the borderline range of mental retardation), cert. denied, 502 U.S. 853, 112 S.Ct. 161, 116 L.Ed.2d 126 (1991); United States v. Macklin, 900 F.2d 948, 950-53" }, { "docid": "7445505", "title": "", "text": "him if he told the truth. We have carefully reviewed Simmons’ videotaped statement to police, along with transcripts of pretrial hearings on its admissibility, depositions of law enforcement officials, and the trial transcript. We find Simmons’ claim that his self-incriminating statement resulted from coercive activity is without merit. On videotape, Simmons acknowledged that his rights had been read to him and that he understood those rights but chose not to exercise them. He also acknowledged that he voluntarily chose to speak to law enforcement officials. Law enforcement officials testified that Simmons was read his Miranda rights before the officials began questioning him. Although the requirement that a Miranda warning be given does not dispense with the voluntariness inquiry, “ ‘[c]ases in which a defendant can make a colorable argument that a self-incriminating statement was “compelled” despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.’” Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 2336, 147 L.Ed.2d 405 (2000) (quoting Berkemer v. McCarty, 468 U.S. 420, 433 n. 20, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). To merit habeas corpus relief, Simmons must prove he involuntarily made his statement to law enforcement officials. Jenner v. Smith, 982 F.2d 329, 333 (8th Cir.1993). A statement is involuntary when it was extracted by threats, violence, or express or implied promises sufficient to overbear the defendant’s will and critically impair his capacity for self-determination. United States v. Pierce, 152 F.3d 808, 812 (8th Cir.1998). In applying this test, we look at the totality of the circumstances surrounding the interroga tion, including law enforcement officials’ conduct and the defendant’s capacity to resist any pressure. Id. Specifically, we consider factors such as detention length, the repetitive and prolonged nature of questioning, and the accused’s age. Bramlett v. Lockhart, 876 F.2d 644, 646 (8th Cir.1989). We find that the questioning tactics in the present case were not improperly coercive. Officers may elicit statements by claiming not to believe the accused’s denials. Jenner, 982 F.2d at 334. Tactics such as deception and raised voices do not render a confession involuntary" }, { "docid": "11614843", "title": "", "text": "which he now stands convicted. In May 1986, a pre-trial hearing was held by the District Court and Rohrbach’s motion to suppress was denied. The court found that Rohrbach gave his statements to the ATF agents voluntarily after making an uncoerced, knowing, and intelligent waiver of his Miranda rights. A jury trial then was held, the statements were admitted into evidence, and Rohrbach was found guilty, receiving concurrent five-year sentences on each of the two counts and a fine of $50. Rohrbach contends that his incriminating statements were not made voluntarily, and that the District Court erred as a matter of law in finding to the contrary. “The voluntariness of a confession is a legal inquiry subject to plenary review by the appellate courts.” United States v. Wilson, 787 F.2d 375, 380 (8th Cir.1986) (citing Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 452, 88 L.Ed.2d 405 (1985)), cert. denied, — U.S. -, 107 S.Ct. 197, 93 L.Ed.2d 129 (1986). To determine if a confession is voluntary, this Court will look at the totality of the circumstances, examining the tactics used by the police, the details of the interrogation, and any characteristics of the accused that might cause his will easily to be overborne. Rachlin v. United States, 723 F.2d 1373, 1377 (8th Cir.1983). We note that in Colorado v. Connelly, — U.S. -, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986), the Supreme Court recently held that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment.” In Connelly, the Court ruled admissible a confession that was the product of a psychosis rather than the product of coercive tactics by the police. The Court observed that “the Fifth Amendment privilege [against self-incrimination] is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’ ” Id. 107 S.Ct. at 523 (quoting Oregon v. Elstad, 470 U.S. 298, 305, 105 S.Ct. 1285, 1291, 84 L.Ed.2d 222 (1985)). We read Connelly as establishing that an incriminating statement" }, { "docid": "13125151", "title": "", "text": "in finding the agents’ testimony credible. See United States v. Haggard, 368 F.3d 1020, 1024 (8th Cir.2004) (“The district court’s witness credibility decisions can almost never be clear error.”). We are also unpersuaded by Contreras’s contention that a language barrier prevented him from consenting voluntarily. Although law enforcement provided a Spanish interpreter for Contreras’s post-arrest interrogation, Agent Slosson testi fied that the bulk of the interrogation was conducted in English. Agent Larson also testified that Contreras effectively communicated with him in English. The record contains substantial evidence showing that Contreras was lucid at the time he gave consent and that he understood the questions asked of him. He consented in his own home, and nothing in the record suggests that law enforcement officers made threats, promises of leniency or misrepresentations. Contreras argues that as an eighteen-year-old, he was too young to give consent voluntarily. We disagree. Cfi United States v. Astello, 241 F.3d 965, 968 (8th Cir.2001) (affirming the district’s finding that an eighteen-year-old voluntarily made incriminating statements). We therefore hold that the district court did not err in finding that Contreras voluntarily consented to the search of his residence. Contreras raises the same arguments in support of his motion to suppress incriminating statements he made to law enforcement officers after receiving his Miranda warnings. “We review the district court’s findings of fact for clear error and its legal conclusion as to whether a confession was voluntary de novo.” United States v. LeBrun, 363 F.3d 715, 724 (8th Cir.2004). In making these determinations, we “inquire into the totality of the circumstances in assessing the conduct of law enforcement officials and the suspect’s capacity to resist any pressure.” United States v. Kilgore, 58 F.3d 350, 353 (8th Cir.1995). See also, United States v. Makes Room, 49 F.3d 410, 414 (8th Cir.1995) (noting that courts apply the same standard to assess the validity of a Miranda waiver and the voluntariness of a statement under the Fifth Amendment). For the reasons set forth above, we affirm the district court’s finding that Contreras made a voluntary waiver. We next consider whether the district court" }, { "docid": "7500793", "title": "", "text": "capacity of the suspect to resist pressure to confess. Kilgore, 58 F.3d at 353; Makes Room for Them, 49 F.3d at 415; Jorgensen, 871 F.2d at 729; Rohrbach, 813 F.2d at 144; see also, Winfrey, 836 F.2d at 410; United States v. Wilson, 787 F.2d 375, 386 (8th Cir.), cert. denied, 479 U.S. 857, 107 S.Ct. 197, 93 L.Ed.2d 129 (1986). Although ultimately declining to decide the issue, the Eighth Circuit has suggested that \"perhaps something more is required under § 3051(b) [sic] than is required by the Due Process Clause\". United States v. Bartlett, 856 F.2d 1071, 1085 (8th Cir.1988). Nevertheless, in the context of determining the voluntariness of a statement, the Eighth Circuit has \"considered [a] district court's findings in light of the § 3501 factors as well as the requirements of due process,\" stating that \"the voluntariness inquiry is based on 18 U.S.C. § 3501 as well as due process.\" Casal, 915 F.2d at 1228, n. 3. It appears that a reviewing court must consider constitutional and well as statutory factors to determine the voluntariness of a defendant's statements. The \"overborne will/totality of circumstances\" test was recently clarified and refined by the United States Supreme Court in Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). There, the Supreme Court held that \"coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment\". Id. at 167, 107 S.Ct. at 521-22. The Supreme Court emphasized that in the confession cases it had decided over the previous fifty years, the \"crucial element\" had been the presence of \"police overreaching.\" Id. at 163 & n. 1, 107 S.Ct. at 519-20. The Court thus made it clear that a confession is only involuntary if law enforcement authorities use coercive activity to undermine the suspect's ability to exercise his free will. Id. at 167, 169-70, 107 S.Ct. at 521-22, 522-24. The Eighth Circuit has interpreted Connelly to mean that the \"personal characteristics of the defendant are constitutionally irrelevant absent proof of" }, { "docid": "7500791", "title": "", "text": "U.S.C. § 3501; see also; United States v. Alvarez-Sanchez, 511 U.S. 350, —, 114 S.Ct. 1599, 1604, 128 L.Ed.2d 319 (1994) (\"because respondent's statement was made voluntarily, as the District Court found, ... nothing in § 3501 authorized its suppression.\") Brown v. Mississippi, 297 U.S. 278, 279, 285, 56 S.Ct. 461, 462, 464-65, 80 L.Ed. 682 (1936) (the use of involuntary confessions violates due process). Under § 3501, \"any confession of guilt ... or any self-incriminating statement given orally or in writing,\" if voluntary, is admissible in evidence. § 3501(a), (e). Subsection (b) or the statute provides a non-exhaustive list of factors that a court should consider when determining the voluntariness of such a statement. None of these factors is necessarily determinative of voluntariness. Rather, the court must \"take into consideration all of the circumstances surrounding the giving of the [statement] and consider the circumstances as a whole in its decision.\" § 3501(b); United States v. Bordeaux, 980 F.2d 534, 538-39 (8th Cir.1992); United States v. Casal, 915 F.2d 1225, 1228 (8th Cir.1990), cert. denied, 499 U.S. 941, 111 S.Ct. 1400, 113 L.Ed.2d 455 (1991). While § 3501 provides the statutory guidance for determining the voluntariness of a confession, the constitutional test for voluntariness, as articulated by the Eighth Circuit, is whether \"in light of the totality of the circumstances pressures exerted upon the suspect have overborne his will.\" United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir.1989) (citing Haynes v. Washington, 373 U.S. 503, 513-14, 83 S.Ct. 1336, 1342-44, 10 L.Ed.2d 513 (1963)); Winfrey v. Wyrick, 836 F.2d 406, 410 (8th Cir.1987), cert. denied, 488 U.S. 833, 109 S.Ct. 91, 102 L.Ed.2d 67 (1988); United States v. Rohrbach, 813 F.2d 142, 144, cert. denied, 482 U.S. 909, 107 S.Ct. 2490, 96 L.Ed.2d 381 (1987); see also, United States v. Kilgore, 58 F.3d 350, 353 (8th Cir. 1995); United States v. Makes Room for Them, 49 F.3d 410, 414-15 (8th Cir.1995); Rachlin v. United States, 723 F.2d 1373, 1377 (8th Cir.1983). Two factors must be considered in the voluntariness inquiry: the conduct of the law enforcement officers and the" }, { "docid": "11614844", "title": "", "text": "of the circumstances, examining the tactics used by the police, the details of the interrogation, and any characteristics of the accused that might cause his will easily to be overborne. Rachlin v. United States, 723 F.2d 1373, 1377 (8th Cir.1983). We note that in Colorado v. Connelly, — U.S. -, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986), the Supreme Court recently held that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment.” In Connelly, the Court ruled admissible a confession that was the product of a psychosis rather than the product of coercive tactics by the police. The Court observed that “the Fifth Amendment privilege [against self-incrimination] is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’ ” Id. 107 S.Ct. at 523 (quoting Oregon v. Elstad, 470 U.S. 298, 305, 105 S.Ct. 1285, 1291, 84 L.Ed.2d 222 (1985)). We read Connelly as establishing that an incriminating statement cannot be found “involuntary” in the constitutional sense unless it is established that the police extorted it from the accused by means of coercive activity. Because Rohrbach has not proved, or even alleged, any coercive activity by the ATF agents who interrogated him, we must reject, under Connelly, his claim that his incriminating statements to the agents were made involuntarily. His argument is not that the agents (or anyone else, for that matter) used coercive tactics, but that his personal characteristics, including minimal formal education and a history of alcohol and drug abuse and of suicide attempts, are indicative of an easily overborne will. That argument is legally indistinguishable from the argument unsuccessfully advanced by the defendant in Connelly. Although we believe that personal characteristics such as those on which Rohrbach relies would be relevant to the voluntariness issue once coercive police activity has been shown, Connelly makes it clear that such personal characteristics of the defendant are constitutionally irrelevant absent proof of “coercion brought to bear on the defendant by the State.” 107 S.Ct." }, { "docid": "3861137", "title": "", "text": "be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made. Id. at 309, 105 S.Ct. at 1293. According to the Court, “[a] subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” Id. at 314, 105 S.Ct. at 1296. “ ‘The voluntariness of a confession is a legal inquiry subject to plenary review by the appellate courts.’ ” United States v. Rohrbach, 813 F.2d 142, 144 (8th Cir.) (quoting United States v. Wilson, 787 F.2d 375, 380 (8th Cir.) (citing Miller v. Fenton, 474 U.S. 104, 115, 106 S.Ct. 445, 452, 88 L.Ed.2d 405 (1985)), 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)), cert. denied, 482 U.S. 909, 107 S.Ct. 2490, 96 L.Ed.2d 381 (1987). In determining voluntariness, we examine whether, in light of the totality of the circumstances, the pressures exerted by the authorities overwhelmed the defendant’s will. See, e.g., United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir.1989). Coercive police activity is a necessary predicate to finding that a confession is not voluntary in the constitutional sense. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986); Rohrbach, 813 F.2d at 144. Robinson argues that his initial admission was involuntary because he made it while handcuffed in the presence of several police officers and immediately after crack cocaine had been found in the apartment. We find this argument unpersuasive, as Robinson confuses whether he was in custody for Miranda purposes with whether he voluntarily made the statement. That Robinson made the statement while handcuffed in the presence of several officers following the discovery of the crack may well demonstrate that he was in custody (as we have assumed for the purposes of this opinion), but does not establish that the statement was made involuntarily. We find no evidence that any improperly coercive tactics were employed to" }, { "docid": "21557431", "title": "", "text": "not in an FBI facility. We conclude, therefore, that because Goudreau was not in custody during the interview, Miranda warnings were not required. The government next argues that the district court erred in finding that Goudreau’s statement was not voluntary. Pointing to the agent’s suggestion that Goudreau look for another job as evidence of a too-relaxed atmosphere, the district court found that the nonthreatening nature of the interrogation had led Goudreau to “make disclosures which he would never have made had he understood the circumstances.” Transcript III at 3. In disagreeing with the district court’s finding, we note that “ ‘[t]he voluntariness of a confession is a legal inquiry subject to plenary review by the appellate courts.’ ” United States v. Rohrback, 813 F.2d 142, 144 (8th Cir.) (quoting United States v. Wilson, 787 F.2d 375, 380 (8th Cir.), cert. denied, 479 U.S. 857, 107 S.Ct. 197, 93 L.Ed.2d 129 (1986)); cert. denied, — U.S. -, 107 S.Ct. 2490, 96 L.Ed.2d 381 (1987). Coercive official activity is a necessary predicate to a finding that a statement is not voluntary. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986). The fifth amendment privilege against self-incrimination is not concerned with other types of psychological pressures. An incriminating statement is not involuntary unless extorted from the accused by means of coercive activity. Rohrbach, 813 F.2d at 144. The FBI agents did not coerce Goudreau, who willingly gave his side of the story. There is no evidence suggesting that Gou-dre'au’s will was overborne or that his capacity for self-determination was impaired. Accordingly, the district court erred in finding that Goudreau’s statement was not voluntary because of the nonthreatening atmosphere during the interview. The district court’s order suppressing Goudreau’s statement is reversed, and the case is remanded to the district court for further proceedings. . The district court concluded that Miranda warnings should have been given because Gou-dreau did not take the interview seriously. The government argues, however, that whether Gou-dreau took the interview too lightly is irrelevant to the question of whether he was in custody. We agree. The" }, { "docid": "7500802", "title": "", "text": "v. Dugger, 838 F.2d 1530, 1537 (11th Cir.) (quoting Connelly, 479 U.S. at 165, 107 S.Ct. at 520-21)), cert. denied, 486 U.S. 1061, 108 S.Ct. 2832, 100 L.Ed.2d 933 (1988)). Finally, Davis' conduct did not resemble or even approach the coercive police conduct present in Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960) or any of the involuntary confession cases cited in Connelly. See 479 U.S. at 164-65, 169-70, 107 S.Ct. at 520-21, 522-24. The fact that Bad Hand's confession came immediately following the pre-test portion of the polygraph examination, without renewed Miranda warnings, is of little, if any significance because the circumstances present, when considered in toto, clearly demonstrate that the confession was made voluntarily. Wyrick v. Fields, 459 U.S. 42, 47-49, 103 S.Ct. 394, 396-397, 74 L.Ed.2d 214 (1982), on remand, 706 F.2d 879, 880-82 (8th Cir.), cert. denied, 464 U.S. 1020, 104 S.Ct. 556, 78 L.Ed.2d 728 (1983); McDowell, 984 F.2d at 234; Jenner, 982 F.2d at 333-34; Vassar v. Solem, 763 F.2d 975, 977-78 (8th Cir.1985); United States v. Iron Thunder, 714 F.2d 765, 771-72 (8th Cir.1983); United States v. Jackson, 712 F.2d 1283, 1285-86 (8th Cir.1983); United States v. Eagle Elk, 711 F.2d 80, 81-83 (8th Cir.1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); see also, Jenner, 451 N.W.2d at 717-20. Accordingly, the admissions made by Bad Hand to Davis were voluntary and not the product of coercive interrogation or overreaching on the part of Davis. Id.; Makes Room For Them, 49 F.3d at 415; Sidebot tom, 46 F.3d at 757-58; Jorgensen, 871 F.2d at 729-30; Winfrey, 836 F.2d at 410-12; Rohrbach, 813 F.2d at 144. Bad Hand was read his rights, waived them and voluntarily confessed. Because Davis took no action that could objectively be considered as coercion or overstepping his bounds, there is nothing to refute the voluntariness of Bad Hand's statements. The Government has thus established, by a preponderance of the evidence, that Bad Hand's statements satisfied the voluntariness requirements of both § 3501 and the Constitution. C. Waiver. Having determined that" }, { "docid": "23698079", "title": "", "text": "or psychological coercion or by improper inducement so that the suspect’s will was overborne.” United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir.1988), citing Haynes v. Washington, 373 U.S. 503, 513-14, 83 S.Ct. 1336, 1342-44, 10 L.Ed.2d 513 (1963). This totality of the circumstances test was clarified and refined by the Supreme Court in Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (Connelly). There, the Court held that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Id. at 167, 107 S.Ct. at 522. The Court emphasized that in the confession cases it had decided over the previous 50 years, the “crucial element” had been the presence of “police overreaching.” Id. at 163 & n. 1, 107 S.Ct. at 520 & n. 1. Thus, the Court has made it clear that a confession is only involuntary under the fourteenth amendment if the police use coercive activity to undermine the suspect’s ability to exercise his free will. As the Eighth Circuit stated, “Connelly makes it clear that ... personal characteristics of the defendant are constitutionally irrelevant absent proof of coercion.” United States v. Rohrbach, 813 F.2d 142, 144 (8th Cir.) (internal quotations omitted), cert, denied, 482 U.S. 909, 107 S.Ct. 2490, 96 L.Ed.2d 381 (1987). Consequently, Derrick’s age and mental capacity are relevant to our due process inquiry only if we first conclude that the police’s conduct was coercive. A. The state trial judge found that “[t]here is no evidence in the record that there was any form of police misconduct in talking with the defendant.” The state maintains that our review is limited because this statement amounts to a subsidiary factual finding and is thus entitled to a presumption of correctness pursuant to section 2254(d). However, the presence of “coercive police activity,” Connelly, 479 U.S. at 167, 107 S.Ct. at 522, has generally been considered by us as an issue for de novo review. Soon after Connelly was decided, we stated: We review de" }, { "docid": "11659389", "title": "", "text": "suspect’s state of mind alone is insufficient to make a confession involuntary. Colorado v. Connelly, 479 U.S. 157, 163-67, 107 S.Ct. 515, 519-21, 93 L.Ed.2d 473 (1986); United States v. Rohrbach, 813 F.2d 142, 144-45 (8th Cir.), cert. denied, 482 U.S. 909, 107 S.Ct. 2490, 96 L.Ed.2d 381 (1987). When examining the voluntariness of a confession, we must determine whether pressures exerted by officials have overborne the suspect’s will, considering both the conduct of the officials and the capacity of the suspect to resist pressure. United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir.1989). Any questioning “of one sus pected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.” Id., at 729-30 (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977)). We do not condone all of the police tactics in this case. Nevertheless, upon the whole record, we cannot conclude that the officer’s misstatement of the purpose of the interrogation, statements of disbelief, untrue suggestions of eyewitnesses, and statement that Evans would be returned to his cell amount to unconstitutional coercion as envisioned by Connelly, Jorgensen, and Rohrbach. See Jorgensen, 871 F.2d at 730 (creating fear of imminent arrest does not make confession involuntary); cf. McDonald v. Black, 820 F.2d 260 (8th Cir.1987) (confession of sixteen-year-old not involuntary); United States v. Wolf, 813 F.2d 970, 975 (9th Cir.1987) (expressing disbelief to elicit further statements did not make confession involuntary); Martin v. Wainwright, 770 F.2d 918, 927 (11th Cir.1985) (confession voluntary even though police misrepresented evidence), modified, 781 F.2d 185, cert. denied, 479 U.S. 909, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986); De La Rosa v. Texas, 743 F.2d 299, 303 (5th Cir.1984) (time gap did not make confession involuntary), cert. denied, 470 U.S. 1065, 105 S.Ct. 1781, 84 L.Ed.2d 840 (1985). None of the actions by themselves would make the confession involuntary. The totality of the circumstances determines" }, { "docid": "13516803", "title": "", "text": "and/or fatigue, and we decline to do so now. See, e.g., United States v. Casal, 915 F.2d 1225, 1229 (8th Cir.1990), cert. denied, 499 U.S. 941, 111 S.Ct. 1400, 113 L.Ed.2d 455 (1991). Makes Room also argues that his waiver and confession were involuntary because he is of average or lower than average intelligence with only an eighth grade education, and is therefore peculiarly susceptible to having his will overborne. We find no merit to this contention. Although age, education and experience are factors in the voluntariness analysis, they are not dispositive. Colorado v. Connelly, 479 U.S. 157, 165, 107 S.Ct. 515, 520, 93 L.Ed.2d 473 (1986). Makes Room was clearly intelligent enough to understand his rights and to know how to invoke them. Indeed, he invoked these rights the next day. Considering these factors in totality, we cannot find that Makes Room’s will was overborne, either as regards his confession or his Miranda waiver. We may assume for the sake of argument that Makes Room had a somewhat diminished capacity to resist pressure to waive his rights and confess. However, this is one of two factors; we must also consider the conduct of the police. Jenner v. Smith, 982 F.2d 329, 333 (8th Cir.), cert. denied, — U.S. -, 114 S.Ct. 81, 126 L.Ed.2d 49 (1993); United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir.1989). We simply do not find the requisite coercive activity here. Neither Agent Pritchard’s suggestion of “memory techniques” to Makes Room nor his use of “suggestive” questions is improper. Jenner, 982 F.2d at 332, 334 (various questioning tactics did not render admissions involuntary). No threats or promises were made. The duration of the interrogation was not coercive, and Makes Room was given breaks when he requested them. Id. at 334 (six-hour interview did not render confession involuntary). Thus, we find no error in the decision by the trial court to admit Makes Room’s confession. B. The sentencing judge did not abuse his discretion when he refused to transfer the case to the trial judge for sentencing. Makes Room argues that the sentencing judge abused" }, { "docid": "7500794", "title": "", "text": "determine the voluntariness of a defendant's statements. The \"overborne will/totality of circumstances\" test was recently clarified and refined by the United States Supreme Court in Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). There, the Supreme Court held that \"coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment\". Id. at 167, 107 S.Ct. at 521-22. The Supreme Court emphasized that in the confession cases it had decided over the previous fifty years, the \"crucial element\" had been the presence of \"police overreaching.\" Id. at 163 & n. 1, 107 S.Ct. at 519-20. The Court thus made it clear that a confession is only involuntary if law enforcement authorities use coercive activity to undermine the suspect's ability to exercise his free will. Id. at 167, 169-70, 107 S.Ct. at 521-22, 522-24. The Eighth Circuit has interpreted Connelly to mean that the \"personal characteristics of the defendant are constitutionally irrelevant absent proof of `coercion brought to bear on the defendant by the [Government].'\" Sidebottom v. Delo, 46 F.3d 744, 758 (8th Cir.), cert. denied, — U.S. —, 116 S.Ct. 144, 133 L.Ed.2d 90 (1995) (quoting Rohrbach, 813 F.2d at 144); see also, Jenner v. Smith, 982 F.2d at 333-34. The burden of proof on the issue of voluntariness is one of a preponderance of the evidence. Connelly, 479 U.S. at 168-69, 107 S.Ct. at 522-23; United States v. Wright, 706 F.2d 828, 830 (8th Cir.1983). To be admissible, the Government must establish by a greater weight of the evidence that a defendant's confession was voluntarily made. In other words, it must prove that the defendant's confession was more likely than not voluntarily given. See Manual of Modern Federal Jury Instructions For The District Courts of The Eighth Circuit, § 3.04 at 37 (1995 ed.); 3 E. Devitt, C. Blackmar & M. Wolff, Federal Jury Practice and Instructions (Civil), § 72.01 at 31-32, (4th ed. 1987 & Supp.1995). Although not altogether clear, it appears that one of Bad Hand’s" }, { "docid": "23076458", "title": "", "text": "“an essentially free and unconstrained choice” by Barahona. Thus, after careful review of the record, we conclude that the finding of voluntary consent is not clearly erroneous. C. Barahona also seeks the suppression of statements he made after his arrest on the ground they were obtained in violation of his Miranda right to have counsel present during custodial interrogation. He alleges the law enforcement officers used coercive tactics and ignored his repeated requests for counsel during critical periods of his interrogation. Once a suspect invokes his right to have counsel present during a custodial interrogation, all questioning must cease until counsel is present. Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). This right is derived from the Fifth Amendment’s privilege against self-incrimination, and may of course be waived. See id. at 474-75, 86 S.Ct. at 1628. The government bears the burden of proving by a preponderance of the evidence that the defendant knowingly and voluntarily waived this right. Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986); United States v. Dougherty, 810 F.2d 763, 773 (8th Cir.1987). The voluntariness of a waiver depends on the absence of police overreaching, that is, the relinquishment of the right must have been the result of a free and deliberate choice rather than intimidation, coercion, or deception. Connelly, 479 U.S. at 170, 107 S.Ct. at 523; Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (1986); Fare v. Michael C, 442 U.S. 707, 726-27, 99 S.Ct. 2560, 2572-73, 61 L.Ed.2d 197, reh’g denied, 444 U.S. 887, 100 S.Ct. 186, 62 L.Ed.2d 121 (1979). In determining whether a valid waiver has been made, a trial court must look at the totality of the circumstances in each case, including the background, experience, and conduct of the accused. Dougherty, 810 F.2d at 773; Stumes v. Solem, 752 F.2d 317, 320 (8th Cir.), cert. denied, 471 U.S. 1067, 105 S.Ct. 2145, 85 L.Ed.2d 502 (1985); Fare, 442 U.S. at 724-25, 99 S.Ct. at 2571-72. We review the magistrate judge’s factual" }, { "docid": "7500801", "title": "", "text": "confirmed alcoholic and had memory gaps); see also; State v. Jenner, 451 N.W.2d 710, 717-20 (S.D.1990). After reviewing the record and assessing the credibility of the witnesses who testified, this Court is unable to find that the requisite coercive or overreaching conduct was present on June 8, 1995 so as to make Bad Hand's confession involuntary. No threats or promises were made to Bad Hand and no undue influence or pressure exerted on him. The duration, tone and overall atmosphere of the interview/examination were not hostile or coercive. Although Martha maintains that Davis was impatient and after about five minutes became upset and said, \"We don't honor tribal attorneys,\" and \"intimidated\" Bad Hand into taking a polygraph examination, Evid.Hrg.Tr. (Feb. 7, 1996) at 94-96, 112-114, the evidence of record and her overall lack of credibility belie these assertions. Davis never testified whether he was aware of Bad Hand's intellectual or memory impairments, but even if he did, there was nothing in the record to show that he \"exploited these weaknesses with coercive tactics.\" See Miller v. Dugger, 838 F.2d 1530, 1537 (11th Cir.) (quoting Connelly, 479 U.S. at 165, 107 S.Ct. at 520-21)), cert. denied, 486 U.S. 1061, 108 S.Ct. 2832, 100 L.Ed.2d 933 (1988)). Finally, Davis' conduct did not resemble or even approach the coercive police conduct present in Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960) or any of the involuntary confession cases cited in Connelly. See 479 U.S. at 164-65, 169-70, 107 S.Ct. at 520-21, 522-24. The fact that Bad Hand's confession came immediately following the pre-test portion of the polygraph examination, without renewed Miranda warnings, is of little, if any significance because the circumstances present, when considered in toto, clearly demonstrate that the confession was made voluntarily. Wyrick v. Fields, 459 U.S. 42, 47-49, 103 S.Ct. 394, 396-397, 74 L.Ed.2d 214 (1982), on remand, 706 F.2d 879, 880-82 (8th Cir.), cert. denied, 464 U.S. 1020, 104 S.Ct. 556, 78 L.Ed.2d 728 (1983); McDowell, 984 F.2d at 234; Jenner, 982 F.2d at 333-34; Vassar v. Solem, 763 F.2d 975, 977-78 (8th Cir.1985);" } ]

[ { "docid": "11169350", "title": "", "text": "of Jefferson County, Texas. . All of the appellants (Ventana Investments, Pride House Care Corporation, Britwill Company, and Bruce H. Whitehead) will be referred to collectively as “Ventana.” .There are three other defendants, Kemper Financial Companies, Inc., Lovett Mitchell Webb & Garrison, Inc. and William Sorenson. Discussion of these defendants is not important to our resolution of this case. . The Iowa and Arkansas deals were separate. The Iowa nursing homes were sold to Mercy Health Initiatives, while the Arkansas nursing homes were to be sold to Pride House. . Franklin Financial is a wholly-owned subsidiary of Franklin Federal Savings Association (Franklin Savings), for which the Resolution Trust Corporation (“RTC”) was the receiver and conservator. 909 Corp, formerly known as Underwood, Neuhaus & Company, was a wholly-owned subsidiary of Franklin Financial that dissolved on July 31, 1992. . The motion to remand was timely filed, as it was filed within 30 days of removal. 28 U.S.C. § 1447(c). . After Ventana appealed, they moved for dismissal of the case due to lack of subject matter jurisdiction, and a motions panel of this Court denied the motion. However, the dispositive issue in this appeal is not a lack of subject matter jurisdiction, but rather a procedural defect in removal. Barnes v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir.), cert. denied, - U.S. -, 113 S.Ct. 600, 121 L.Ed.2d 536 (1992) (untimely removal is a procedural defect and does not go to subject matter jurisdiction). In any event, an oral argument panel is not bound by a motions panel’s denial of a motion to dismiss. E.E.O.C. v. Neches Butane Products Co., 704 F.2d 144, 147 (5th Cir.1983). . Our circuit has applied a parallel rule with regard to FDIC removal, holding that under 12 U.S.C. § 1819(b)(2)(B), which governs removal by the FDIC, the clock does not begin running until the FDIC appears in the state court proceeding. FDIC v. Loyd, 955 F.2d 316, 327 (5th Cir.1992). . Many of the cases cited by the RTC are pre-1992 Amendment or relate to the FDIC statute. Those cases are, therefore, inapposite." } ]

[ { "docid": "10259404", "title": "", "text": "action had been commenced with its filing. Furthermore, the addition of Sandoz Pharma Ltd. as a defendant in the Amended Complaint similarly does not so substantially alter the Complaint so as to justify such a finding. Although the Amended Complaint is much more thorough, and thus more lengthy, than the original Complaint, the substance of the plaintifPs claims — namely, products liability and negligence — remains the same. [C]ourts have recognized that “a willingness to remain in a state court to litigate a particular claim should not be interpreted as a willingness to remain in a state court to adjudicate a different claim.” See 14A Wright, Miller, and Cooper, § 3732 at 525-26. The question in this case becomes, then, whether the addition of the [defendant and the expansion of the plaintiffs claims] either provided a new basis for removal or substantially altered the nature of the suit. Potty Pals, Inc. v. Carson Financial Group, Inc., 887 F.Supp. 208, 210 (E.D.Ark.1995) (citing Pearson v. Gerber Prods. Co., 788 F.Supp. 410, 412 (W.D.Ark.1992)). Because the Amended Complaint did not substantially alter the lawsuit, no removal right would have been revived had it existed in the first instance. Thus, the defendants’ removal of this action on the basis of diversity was untimely as it fell outside the statutory prohibition against removal after an action has been pending in state court over one year. C. Section lU6(b): Procedural or Jurisdictional? As a final argument, the defendants contend that the Fifth Circuit has recognized that the one-year limit of § 1446(b) is procedural and not jurisdictional, and thus subject to equitable considerations. Defendants’ Brief at 7. Although there is a split of authority as to this issue, controlling Fifth Circuit authority has deemed the provision procedural. Barnes v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir.1992) (holding one-year limit expressed in § 1446(b) “merely modal and formal and may be waived.”). However, the appellate court has not extended its decision to a situation such as that faced by the court today. See Ventana Investments v. 909 Corp., 65 F.3d 422, 425 n. 7" }, { "docid": "11634905", "title": "", "text": "the present circumstances is governed by the second paragraph of 28 U.S.C. § 1446(b), which provides: 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 removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than one year after commencement of the action. 28 U.S.C. § 1446(b). The Fifth Circuit has held that this section is only a procedural provision, and is not jurisdictional. Barnes v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir.1992). The section is modal and formal and may be waived. Barnes, 962 F.2d at 516. The Fifth Circuit has subsequently affirmed its holding that the word “procedural” in section 1447(e) refers to any defect that does not involve the inability of the federal district court to entertain the suit as a matter of its original jurisdiction. Hopkins v. Dolphin Titan Int'l, Inc., 976 F.2d 924, 926 (5th Cir.1992). Relying on the Fifth Circuit holding that the time limits contained in section 1446(b) are not jurisdictional, the issue of the applicability of equitable considerations is raised. Presently, there is a split in authority on this issue. Some courts have construed the language of section 1446 as an absolute bar to removal based on diversity jurisdiction attempted more than one year after the commencement of an action. Other courts have used their equitable powers to permit removals based on diversity jurisdiction more than one year after the commencement of an action when the courts felt that a plaintiff manipulated the language of the statute and threatened the defendant’s right to removal. The Fifth Circuit has not addressed directly the waiver of the one year time limit of section 1446(b) in a case where plaintiffs have attempted to manipulate statutory rules for determining federal jurisdiction. The" }, { "docid": "1768032", "title": "", "text": "1292(b). The Court will withhold entering final judgment until the Court determines whether a motion to certify the matter to the Fifth Circuit will be filed. It is for this reason that the Court also denies plaintiffs’ request for costs and expenses. Therefore, IT IS ORDERED that plaintiffs’ Motion to Remand be and it is hereby GRANTED. IT IS FURTHER ORDERED that the plaintiffs’ request for costs and expenses be and it is hereby DENIED. IT IS FURTHER ORDERED that the parties shall have ten (10) days to file a motion to certify the matter to the Fifth Circuit Court of Appeals pursuant to 28 U.S.C. § 1292(b). The Court will withhold entering a judgment ordering remand for a period of ten days. . Paula Martine is referred to as \"Paulina Mar-tine” in the plaintiffs' original petition for damages filed in state court. . Plaintiffs also named the insurers of the various defendants in their petition for damages. . Royer v. Harris Well Service, Inc., 741 F.Supp. 1247, 1248 (M.D.La.1990). . La.Code Civ.P. art. 421 (1993); De La Vergne v. De La Vergne, 479 So.2d 549, 550 (La.App. 1st Cir.1985). . De La Vergne, 479 So.2d at 550; Haynie v. Haynie, 452 So.2d 426 (La.App. 3rd Cir.1984). . A Notice of Removal filed more than one year after the commencement of the action is procedurally defective. The Fifth Circuit has held that the one year limitation of 1446(b) is not jurisdictional. It is modal and formal and may be waived. Barnes v. Westinghouse, 962 F.2d 513, 516 (5th Cir.1992). Even more recently, in Hopkins, the Fifth Circuit affirmed its previous holding that the word \"procedural\" in section 1447(c) refers to any defect that does not involve the inability of the federal district court to entertain the suit as a matter of its original jurisdiction. Hopkins v. Dolphin Titan International, Inc., 976 F.2d 924, 926 (5th Cir.1992). . Royer, 741 F.Supp. at 1249. . See Greer v. Skilcraft, 704 F.Supp. 1570 (N.D.Ala.1989) wherein the en banc district court, applying Alabama law, found removal more than one year after the suit was" }, { "docid": "18712953", "title": "", "text": "District of Louisiana, wherein the court wrote, “While the 30 day removal provision contained in § 1446(b) is not jurisdictional and can be waived where the plaintiff fails to object to removal, the one year provision in 28 U.S.C. § 1446(b) is jurisdictional and must be noticed by the court sua sponte.” Molden v. Firestone Tire & Rubber Co., 754 F.Supp. 521, 523 (M.D.La.1990). The Court in that case relied on cases from outside this Circuit, and ruled on this difficult question without the benefit of the guidance later provided by the Fifth Circuit in Barnes. Another District Court for the Middle District of Louisiana has since followed the jurisdictional pronouncement found in Barnes: A notice of Removal filed more than one year after the commencement of the action is procedurally defective. The Fifth Circuit has held that the one year limitation of section 1446(b) is not jurisdictional. It is modal and formal and may be waived. Barnes v. Westinghouse, 962 F.2d 513, 516 (5th Cir.1992). Even more recently, in Hopkins, the Fifth Circuit affirmed its previous holding that the word “procedural” in section 1447(c) refers to any defect that does not involve the inability of the federal district court to entertain the suit as a matter of its original jurisdiction. Hopkins v. Dolphin Titan International, Inc., 976 F.2d 924, 926 (5th Cir.1992). Martine v. National Tea Co., 841 F.Supp. 1421, 1422 (M.D.La.1993). Though some circuit courts of appeal reject the Fifth Cir cuit interpretation of the nature of section 1446(b) time limits (see Rashid v. Schenck Construction Co., 843 F.Supp. 1081, 1086-88 (S.D.W.Va.1993), discussing the split in the circuits), this Court is bound by the Barnes decision to view the one year limitation as procedural, not jurisdictional. 3. Equitable Estoppel in Cases of Bad Faith Forum Manipulation Relying on the Fifth Circuit holding that the time limits contained in section 1446(b) are not jurisdictional, National urges this Court to apply equitable considerations to estop the Plaintiffs from arguing that the one year limitation is an absolute bar to untimely removal. Noting that courts continuously emphasize that bad faith forum" }, { "docid": "1768033", "title": "", "text": "(1993); De La Vergne v. De La Vergne, 479 So.2d 549, 550 (La.App. 1st Cir.1985). . De La Vergne, 479 So.2d at 550; Haynie v. Haynie, 452 So.2d 426 (La.App. 3rd Cir.1984). . A Notice of Removal filed more than one year after the commencement of the action is procedurally defective. The Fifth Circuit has held that the one year limitation of 1446(b) is not jurisdictional. It is modal and formal and may be waived. Barnes v. Westinghouse, 962 F.2d 513, 516 (5th Cir.1992). Even more recently, in Hopkins, the Fifth Circuit affirmed its previous holding that the word \"procedural\" in section 1447(c) refers to any defect that does not involve the inability of the federal district court to entertain the suit as a matter of its original jurisdiction. Hopkins v. Dolphin Titan International, Inc., 976 F.2d 924, 926 (5th Cir.1992). . Royer, 741 F.Supp. at 1249. . See Greer v. Skilcraft, 704 F.Supp. 1570 (N.D.Ala.1989) wherein the en banc district court, applying Alabama law, found removal more than one year after the suit was filed was proper because there was no bona fide attempt to serve the defendant within the one year period." }, { "docid": "2526494", "title": "", "text": "v. Chesapeake Ins. Co., 933 F.2d 1207, 1213 (3d Cir.), cert. denied, — U.S. -, 112 S.Ct. 302, 116 L.Ed.2d 245 (1991) (since “not all non-jurisdictional motions for remand are governed by the 30-day time limit,” a motion to remand made 54 days after removal based upon a forum selection clause is not covered by § 1447(c)). For criticism of Hurt, see Quentin F. Urquhart, Jr., Waiver of Defects in Jurisdiction: Another Path to Federal Court, Defense, Dec 1992, at 7. . Section 1333(1) provides that \"[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of ... [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” . See also In re Digicon Marine, Inc., 966 F.2d 158, 160 (5th Cir.1992) (\"all removal defects are waivable except for lack of original subject matter jurisdiction....”); Barnes v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 600, 121 L.Ed.2d 536 (1992) (motion to remand based upon § 1446(b) made 20 months after removal was waivable procedural defect). . At least two district courts have addressed this question and arrived at opposite results. In Cook v. Shell Chem. Co., 730 F.Supp. 1381, 1382 (M.D.La.1990), the court held that by analogy to the § 1445(a) analysis in Lirette, the plaintiff's failure to object within 30 days to removal of a workers’ compensation suit worked as a waiver under § 1445(c). In Blackmore v. Rock-Tenn Co., 756 F.Supp. 288, 289 (N.D.Tex.1991), the court sua sponte remanded a Texas workers’ compensation action more than 30 days after removal. The defendant had objected to the remand, claiming that the district court had original jurisdiction because diversity of citizenship existed. Id. Assuming diversity existed, the remand is questionable. We note that GM originally removed this case based upon federal question jurisdiction as well as diversity. Because we have decided that there was diversity, we need not decide whether a federal question was presented. Williams also apparently argues that once she abandoned any" }, { "docid": "9706768", "title": "", "text": "which it may first be ascertained that the case is one which is or has become removable, except that a ease may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. Although this Court has not specifically addressed whether the one-year time limit in the second paragraph of § 1446(b) is jurisdictional, we have repeatedly stated that “an irregularity in removal of a case to federal court is to be considered ‘jurisdictional’ only if the case could not initially have been filed in federal court.” Korea Exchange, 66 F.3d at 50; accord Cook, 320 F.3d at 436; FMC, 208 F.3d at 450 n. 6. Here, there is no dispute that the case could have initially been filed in federal court. Our precedents thus clearly indicate that jurisdiction was proper notwithstanding any failure to comply with the one-year time limit in § 1446(b). In Korea Exchange, we surveyed a number of Supreme Court decisions “refus[ing] to treat the removal statute as imposing independent jurisdictional requirements.” 66 F.3d at 49-50; accord Mackay v. Uinta Dev. Co., 229 U.S. 173, 176, 33 S.Ct. 638, 57 L.Ed. 1138 (1913) (“Removal proceedings are in the nature of process to bring the parties before the United States court.”). In particular, it is well established that the 30-day time limit for removal in the first paragraph of 1446(b) is procedural, McGlinchey v. Hartford Acc. & Indem. Co., 866 F.2d 651, 653 (3d Cir.1989), and that a case may not be remanded for failure to comply with the 30-day time limit absent a timely motion, Air-Shields, 891 F.2d at 64-65. We see no reason in the language or history of § 1446(b) to construe the one-year time limit any differently. Accord Barnes v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir.1992) (holding that the one-year limit in section 1446(b) is procedural, not jurisdictional, and is therefore waived if not raised in a timely motion to remand); cf. Tedford v. Warner-Lambert Co., 327 F.3d 423, 426-27 & n. 8 (5th Cir.2003) (discussing Barnes" }, { "docid": "14923515", "title": "", "text": "(citing Nolan v. Boeing Co., 919 F.2d 1058, 1063 n. 6 (5th Cir.1990)). In Barnes the defendant removed a case to federal court after it had been pending in state court for over four years. Plaintiff Barnes promptly moved to remand the action to state court, but apparently did not rely on the one-year limitation in the statute. Approximately twenty months later, Barnes filed a motion for rehearing where he argued for the first time that a case cannot be removed to federal court on the basis of diversity more than one year after commencement of the action. The Fifth Circuit held that plaintiff waived his opportunity to call this procedural defect to the court’s attention. Barnes, 962 F.2d at 516. While the court focused on the plaintiffs waiving his right to have a case remanded to state court, the case shows that at least under some circumstances, a case may be removed after it has been pending for more than one year. In the present case there is no argument that Plaintiffs waived their right to remand by delay. Defendants argue the Plaintiffs are attempting to manipulate the rules on joinder and remand to have Freedom Life considered a non-diverse Defendant and that Plaintiffs have wrongfully joined their separate claims solely in a distorted attempt to prevent removal. Defendants assert that the one-year limitation on removal in diversity cases is not absolute; but merely procedural and sub ject to equitable exceptions. Plaintiffs argue that the one year limitation is an absolute bar that requires remand of the entire case. Another district court within this circuit noted that this “precise issue has not been addressed by the Fifth Circuit.” Ferguson v. Security Life of Denver Ins. Co., 996 F.Supp. 597, 600 (N.D.Tex.1998). The court in Ferguson noted that some district courts have construed the statute as an absolute bar to the removal of any diversity case after one year. Ferguson, 996 F.Supp. at 600 (citations omitted). Other district courts have found the limitation to be merely procedural and subject to equitable exceptions. See Shiver v. Sprintcom, Inc., 167 F.Supp.2d 962" }, { "docid": "14923513", "title": "", "text": "whichever period is shorter. 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 removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. 28 U.S.C. § 1446(b) (1988). (emphasis added). In determining the meaning of a statute, the court must look not only to the particular statutory language, but also to the statute as a whole, including its design, object and policy. New York Life Ins. Co. v. Deshotel et al., 142 F.3d 873, 885 (5th Cir.1998) (citations omitted). The meaning of statutory language, plain or not, depends on its context. Deshotel, 142 F.3d at 886. One Defendant focuses on the language in the first paragraph that states “within thirty days after the receipt by the defendant, ... of a copy of the initial pleading setting forth the claim for relief.” Thus, Defendant argues, the Second Amended Complaint constitutes the “initial pleading” as to these new Plaintiffs. Another Defendant focuses on the word in the second paragraph “commencement.” Defendant Freedom Life voluntarily dissolved its corporate existence within the state of Mississippi on or about September 29, 2000, and reincorporated in Texas. Plaintiffs Hill and Driskill commenced their causes of action on December 17, 2001, when the Second Amended Complaint was filed in state court. Defendants argue in the alternative that even if the second paragraph governs this case and the one year limit is applicable, the one-year limitation on removal in diversity cases is not absolute; but merely procedural and subject to equitable exceptions. The Fifth Circuit has stated that the “time limitation for removal is not jurisdictional; it is merely ‘modal and formal and may be waived.’ ” Barnes v. Westinghouse Electric Corp., 962 F.2d 513, 516 (5th Cir.1992)" }, { "docid": "18712952", "title": "", "text": "See Miss.R.Civ.P. 11(a). Notwithstanding the conduct of Plaintiffs’ counsel, if the one year limitation found in section 1446(b) is jurisdictional rather than procedural, failure to comply with the time limit would preclude proper removal of these cases. The Court concludes, however, that the failure to comply with the time limit is not a jurisdictional bar. The United States Court of Appeals for the Fifth Circuit, in Barnes v. Westinghouse Electric Corporation, 962 F.2d 613, 516 (5th Cir.1992) stated that the one year limit expressed in section 1446(b) is not jurisdictional, but “is merely modal and formal and may be waived.” Barnes, 962 F.2d at 516. In that case the court wrote, “Because Barnes did not move for rehearing on his motion to remand based on a procedural defect [as opposed to a jurisdictional defect] until approximately twenty months after Westinghouse’s removal, we find that he waived his opportunity to call this procedural defect to the district court’s attention.” Id. Plaintiff argues that this Court should embrace the conclusion of the District Court for the Middle District of Louisiana, wherein the court wrote, “While the 30 day removal provision contained in § 1446(b) is not jurisdictional and can be waived where the plaintiff fails to object to removal, the one year provision in 28 U.S.C. § 1446(b) is jurisdictional and must be noticed by the court sua sponte.” Molden v. Firestone Tire & Rubber Co., 754 F.Supp. 521, 523 (M.D.La.1990). The Court in that case relied on cases from outside this Circuit, and ruled on this difficult question without the benefit of the guidance later provided by the Fifth Circuit in Barnes. Another District Court for the Middle District of Louisiana has since followed the jurisdictional pronouncement found in Barnes: A notice of Removal filed more than one year after the commencement of the action is procedurally defective. The Fifth Circuit has held that the one year limitation of section 1446(b) is not jurisdictional. It is modal and formal and may be waived. Barnes v. Westinghouse, 962 F.2d 513, 516 (5th Cir.1992). Even more recently, in Hopkins, the Fifth Circuit affirmed" }, { "docid": "23244498", "title": "", "text": "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 removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1382 of this title more than 1 year after commencement of the action. We have not previously addressed whether the one-year limit of § 1446(b) is absolute or subject to equitable exception. No other circuit court has published an opinion on this issue, and district courts across the country have come to opposite conclusions. We are not, however, completely without guidance. “Time requirements in lawsuits between private litigants are customarily subject to ‘equitable tolling.’ ” Moreover, “the time limit for removal is not jurisdictional; it is merely modal and formal and may be waived.” We applied these principles in Barnes v. Westinghouse Electric Corp. and determined that § 1446(b)’s one-year limit is subject to waiver. In that case, the plaintiff, Mark Barnes, filed an amended petition naming completely diverse defendants, and Westinghouse removed the case to federal district court within 30 days after the amended petition but over a year after the action had been commenced. The district court denied Barnes’s motion to remand. Over a year later, Barnes filed a motion to reconsider and argued, for the first time, that Westinghouse did not remove the case within one year of the filing of the original complaint. On appeal, we held that Barnes’s failure to timely assert that the removal was procedurally defective under the one-year limit of § 1466(b) waived his opportunity to contest the removal. Section 1446(b) is not inflexible, and the conduct of the parties may affect whether it is equitable to strictly apply the one-year limit. In the present case, Ted- ford timely moved to remand. Nevertheless, we are convinced that if Barnes’s sleeping on his rights justified application of an equitable exception in the form of waiver, Tedford’s forum manipulation justifies application of an equitable exception in the form of estoppel. In enacting § 1446(b), Congress intended to “redue[e] opportunity for removal" }, { "docid": "10259406", "title": "", "text": "(5th Cir.1995) (citing Barnes with approval). In Barnes, the plaintiff argued for remand more than twenty months subsequent to the removal on the basis that the defendant removed the diversity action outside the one-year limitation period. Barnes, 962 F.2d at 514-16. The court held that Barnes had waived his right to object pursuant to § 1447(c). Id. at 516. That section provides that “[a] motion to remand the case on the basis of any defect in removal procedure must be made within SO days after the filing of the notice of removal.” 28 U.S.C. § 1447(c) (emphasis added). In distinguishing between removal jurisdiction and original or subject matter jurisdiction, the court noted that §§ 1446(b) and 1447(e) are procedural provisions as they reference defects which do “not go to the question of whether the case originally could have been brought in federal district court.” Barnes, 962 F.2d at 516 (citing Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1544 (5th Cir.), cert. denied, 502 U.S. 963, 112 S.Ct. 430, 116 L.Ed.2d 449 (1991); In re Shell Oil Co., 932 F.2d 1518, 1522-23 (5th Cir.1991), cert. denied, 502 U.S. 1049, 112 S.Ct. 914, 116 L.Ed.2d 814 (1992)). As such, the court held that since “Barnes did not move for rehearing on his motion to remand based on a procedural defect until approximately twenty months after Westinghouse’s removal, we find that he waived his opportunity to call this procedural defect to the district court’s attention.” Id. In subsequent cases, the Fifth Circuit has reiterated, without extending, its holding in Barnes that a plaintiff waives her right to object to a procedural defect in removal if she files her motion for remand outside the thirty-day time limit imposed by statute for such motions. 28 U.S.C. § 1447(c). In In re Digicon Marine, Inc., the defendant attempted to remove a non-removable maritime claim. 966 F.2d 158, 159-60 (5th Cir.1992). The Fifth Circuit held, however, that remand was improper because the plaintiff filed her motion more than thirty days after the filing of notice of removal. In re Digicon Marine, 966 F.2d at 160. “Because" }, { "docid": "10259407", "title": "", "text": "Shell Oil Co., 932 F.2d 1518, 1522-23 (5th Cir.1991), cert. denied, 502 U.S. 1049, 112 S.Ct. 914, 116 L.Ed.2d 814 (1992)). As such, the court held that since “Barnes did not move for rehearing on his motion to remand based on a procedural defect until approximately twenty months after Westinghouse’s removal, we find that he waived his opportunity to call this procedural defect to the district court’s attention.” Id. In subsequent cases, the Fifth Circuit has reiterated, without extending, its holding in Barnes that a plaintiff waives her right to object to a procedural defect in removal if she files her motion for remand outside the thirty-day time limit imposed by statute for such motions. 28 U.S.C. § 1447(c). In In re Digicon Marine, Inc., the defendant attempted to remove a non-removable maritime claim. 966 F.2d 158, 159-60 (5th Cir.1992). The Fifth Circuit held, however, that remand was improper because the plaintiff filed her motion more than thirty days after the filing of notice of removal. In re Digicon Marine, 966 F.2d at 160. “Because we have held that all removal defects are waivable except for lack of original subject matter jurisdiction, the defect here was waivable.” Id. (citing Baris, 932 F.2d at 1545). The court similarly followed this waiver rule in Williams v. AC Spark Plugs where the plaintiff again waited more than thirty days after removal to object. 985 F.2d 783, 786-88 (5th Cir.1993). The court held that she had thus waived her right to remand. Williams, 985 F.2d at 788. In each case where the Fifth Circuit has held the plaintiff waived the right to remand, the holding has hinged on the plaintiffs failure to comply with the thirty-day time limit for such motions. Id. at 786-88 (discussing Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117 (5th Cir.1987) (en banc), In re Shell Oil Co. and Baris); see also Barnes, 962 F.2d at 516. In the ease sub judice, the plaintiff filed her motion to remand within thirty days of the notice of removal. Thus, under existing Fifth Circuit law, the plaintiff has not waived" }, { "docid": "11634904", "title": "", "text": "the plaintiff filed a Supplemental and Amending Petition naming Exxon Corporation as a defendant. On March 19, 1996, the defendant Exxon Corporation was served with the petition. The defendant Emco-Wheaton, Inc. was served with the petition on March 26, 1996. The service on both defendants occurred over one year after suit was filed. On April 15, 1996, the defendants jointly filed a “Notice of Removal” based on diversity of citizenship pursuant to 28 U.S.C. § 1332. Plaintiff seeks to remand the action under 28 U.S.C. § 1446(b) which prohibits the removal of a case based on diversity of citizenship jurisdiction more than one year after commencement of the action. The defendants concede that it filed for removal outside the allowed time under the statute, but assert that the limitation is procedural only, not jurisdictional, and therefore subject to equitable considerations. The defendants further argue that because of the plaintiffs deceptive action of withholding service, the court should estop the plaintiff from asserting the one year limitation and deny his “Motion to Remand.” Discussion Removal under the present circumstances is governed by the second paragraph of 28 U.S.C. § 1446(b), which provides: 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 removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than one year after commencement of the action. 28 U.S.C. § 1446(b). The Fifth Circuit has held that this section is only a procedural provision, and is not jurisdictional. Barnes v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir.1992). The section is modal and formal and may be waived. Barnes, 962 F.2d at 516. The Fifth Circuit has subsequently affirmed its holding that the word “procedural” in section 1447(e) refers to any defect that does not involve" }, { "docid": "18712951", "title": "", "text": "one year after the eases were filed on April 19, 1994. The Court therefore need not decide whether service of process was effected when Plaintiffs served Defendant’s agent for service of process, or when National learned of such service several days later. National removed the case more than one year from the commencement of the actions, and removal was therefore untimely under section 1446(b). 2. Is the One Year Provision Jurisdictional or Procedural? In the alternative to its argument that removal was timely, National argues that the one year provision should not apply to these cases, since Plaintiffs “engaged in impermissible forum manipulation.” Def.’s Resp. to PL’s Mot. to Remand at 4. The Court agrees that Plaintiffs’ actions in these cases were so deceitful as to amount nearly to a fraud on the State Court. Counsel for Plaintiffs have made clear that they never intended to seek the damages they pled in their complaints, nor to be bound by their answers to interrogatories, despite their signatures certifying that good grounds existed to support those answers. See Miss.R.Civ.P. 11(a). Notwithstanding the conduct of Plaintiffs’ counsel, if the one year limitation found in section 1446(b) is jurisdictional rather than procedural, failure to comply with the time limit would preclude proper removal of these cases. The Court concludes, however, that the failure to comply with the time limit is not a jurisdictional bar. The United States Court of Appeals for the Fifth Circuit, in Barnes v. Westinghouse Electric Corporation, 962 F.2d 613, 516 (5th Cir.1992) stated that the one year limit expressed in section 1446(b) is not jurisdictional, but “is merely modal and formal and may be waived.” Barnes, 962 F.2d at 516. In that case the court wrote, “Because Barnes did not move for rehearing on his motion to remand based on a procedural defect [as opposed to a jurisdictional defect] until approximately twenty months after Westinghouse’s removal, we find that he waived his opportunity to call this procedural defect to the district court’s attention.” Id. Plaintiff argues that this Court should embrace the conclusion of the District Court for the Middle" }, { "docid": "9706769", "title": "", "text": "imposing independent jurisdictional requirements.” 66 F.3d at 49-50; accord Mackay v. Uinta Dev. Co., 229 U.S. 173, 176, 33 S.Ct. 638, 57 L.Ed. 1138 (1913) (“Removal proceedings are in the nature of process to bring the parties before the United States court.”). In particular, it is well established that the 30-day time limit for removal in the first paragraph of 1446(b) is procedural, McGlinchey v. Hartford Acc. & Indem. Co., 866 F.2d 651, 653 (3d Cir.1989), and that a case may not be remanded for failure to comply with the 30-day time limit absent a timely motion, Air-Shields, 891 F.2d at 64-65. We see no reason in the language or history of § 1446(b) to construe the one-year time limit any differently. Accord Barnes v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir.1992) (holding that the one-year limit in section 1446(b) is procedural, not jurisdictional, and is therefore waived if not raised in a timely motion to remand); cf. Tedford v. Warner-Lambert Co., 327 F.3d 423, 426-27 & n. 8 (5th Cir.2003) (discussing Barnes and stating: “Having found the first paragraph of § 1446(b) subject to equitable considerations, we find no reason to depart from this precedent with respect to the second paragraph of § 1446(b)”). First, nothing in the text of the statute suggests that the one-year limit operates differently from the 30-day limit. Neither provision expressly purports to limit federal jurisdiction, and the prohibitive terms of the one-year limit (“except that a case may not be removed”) are no more mandatory than the compulsory terms of the 30-day limit (“[t]he notice of removal ... shall be filed”). Instead, insofar as the one-year limit applies to cases “removed on the basis of jurisdiction conferred by section 1332,” ie., diversity jurisdiction, the statute recognizes that jurisdiction is determined by whether the complaint, as amended, could have been filed in District Court. See also 28 U.S.C. § 1441(a) (“[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed .... ”); Korea Exch., 66 F.3d at 49 (discussing" }, { "docid": "7602676", "title": "", "text": "the basis of diversity of citizenship under 28 U.S.C. § 1332(a). Cross Defendants’ removal came over twenty-two months after the original filing of this litigation. II. ANALYSIS A party has the right to remove a case to federal court when federal jurisdiction exists and the removal procedure is properly followed. See 28 U.S.C. § 1441. A party can move to remand the case on the basis of a defect in the removal procedure or for lack of subject matter jurisdiction. See id. § 1447(c). Hovde argues that this case should be remanded to state court for both reasons. First, Hovde disagrees that diversity jurisdiction exists. Second, Hovde contends that Cross Defendants failed to comply with the one-year time limitation set on removal in 28 U.S.C. § 1446(b). Section 1446(b) was amended in 1988 to add a procedural limitation which states that “a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after the commencement of the action.” 28 U.S.C. § 1446(b) (emphasis added). In the instant case, the specific issue before the court is the proper interpretation of the word “action” found in § 1446(b). Hovde argues that the word “action” refers to the original petition filed in state court. If Hovde’s interpretation is correct, Cross Defendants are not within the one-year period because the case was originally filed on August 5, 1997, and Cross Defendants’ removal was not filed until June 14, 1999, well over one year from the filing of the initial lawsuit. Conversely, Cross Defendants argue that “action” should be interpreted to mean the filing date of Hovde’s cross-claims, March 5, 1999. If Hovde’s cross claims are considered the commencement of the action for purposes of § 1446(b), Cross Defendants’ removal would be timely. For the following reasons, the court is of the opinion that this case was untimely removed under § 1446(b) and should be remanded. A. Case Law Historically, the United States Supreme Court and the Fifth Circuit have stated that removal statutes call for a strict and literal application. See Shamrock Oil" }, { "docid": "2173797", "title": "", "text": "Inc. v. Fosco Indus., Inc., 843 F.Supp. 424, 426 (N.D.Ill.1994) (“[T]he statutory language [one year limit in § 1446(b)] is crystal-clear, and federal judges do not sit as superlegislators to amend or repeal the work of Congress.”). Here, there is no question that Defendants failed to file their notice of removal within the one year period. There is also no question that Plaintiff’s motion to remand was timely. See 28 U.S.C. § 1447(c) (“A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a).”). Here, Plaintiffs motion to remand filed January 9, 1996 was filed within 30 days of Defendants’ notice of removal filed December 11,1995. Accordingly, the Court need not consider whether the one year time limit under § 1446(b) is a jurisdictional limitation that cannot be waived or merely a procedural requirement that can be waived by an untimely motion to remand — either way, there is no question of waiver here. See, e.g., Rashid v. Schenck Constr. Co., 843 F.Supp. 1081, 1087 (S.D.W.Va.1993) (“Courts concluding that the one-year time limit ... is a jurisdictional limitation not subject to the thirty day requirement for motions to remand based on defects in removal procedure [see id. at 1086-87 (citing cases) ] reach that decision on the basis of the statute’s language and the legislative history surrounding the 1988 amendment which added that provision. They note that the one-year time limitation ... reads as a blanket restriction. Additional consideration is given to statements contained in the legislative history[ ] _”); Price v. Messer, 872 F.Supp. 317, 320 (S.D.W.Va.1995) (“In this district, the one year cap of § 1446(b) is recognized to be a jurisdictional limitation that should be rigidly observed to prevent removal of diversity cases pending in state court for more than one year.”); Perez v. Gen’l Packer, Inc., 790 F.Supp. 1464, 1471 (C.D.Cal.1992) (“[T]he Court finds that the one-year rule is a jurisdictional rule and its violation a jurisdictional defect. As such, the Court may sua sponte" }, { "docid": "14923514", "title": "", "text": "paragraph that states “within thirty days after the receipt by the defendant, ... of a copy of the initial pleading setting forth the claim for relief.” Thus, Defendant argues, the Second Amended Complaint constitutes the “initial pleading” as to these new Plaintiffs. Another Defendant focuses on the word in the second paragraph “commencement.” Defendant Freedom Life voluntarily dissolved its corporate existence within the state of Mississippi on or about September 29, 2000, and reincorporated in Texas. Plaintiffs Hill and Driskill commenced their causes of action on December 17, 2001, when the Second Amended Complaint was filed in state court. Defendants argue in the alternative that even if the second paragraph governs this case and the one year limit is applicable, the one-year limitation on removal in diversity cases is not absolute; but merely procedural and subject to equitable exceptions. The Fifth Circuit has stated that the “time limitation for removal is not jurisdictional; it is merely ‘modal and formal and may be waived.’ ” Barnes v. Westinghouse Electric Corp., 962 F.2d 513, 516 (5th Cir.1992) (citing Nolan v. Boeing Co., 919 F.2d 1058, 1063 n. 6 (5th Cir.1990)). In Barnes the defendant removed a case to federal court after it had been pending in state court for over four years. Plaintiff Barnes promptly moved to remand the action to state court, but apparently did not rely on the one-year limitation in the statute. Approximately twenty months later, Barnes filed a motion for rehearing where he argued for the first time that a case cannot be removed to federal court on the basis of diversity more than one year after commencement of the action. The Fifth Circuit held that plaintiff waived his opportunity to call this procedural defect to the court’s attention. Barnes, 962 F.2d at 516. While the court focused on the plaintiffs waiving his right to have a case remanded to state court, the case shows that at least under some circumstances, a case may be removed after it has been pending for more than one year. In the present case there is no argument that Plaintiffs waived their" }, { "docid": "10259405", "title": "", "text": "Complaint did not substantially alter the lawsuit, no removal right would have been revived had it existed in the first instance. Thus, the defendants’ removal of this action on the basis of diversity was untimely as it fell outside the statutory prohibition against removal after an action has been pending in state court over one year. C. Section lU6(b): Procedural or Jurisdictional? As a final argument, the defendants contend that the Fifth Circuit has recognized that the one-year limit of § 1446(b) is procedural and not jurisdictional, and thus subject to equitable considerations. Defendants’ Brief at 7. Although there is a split of authority as to this issue, controlling Fifth Circuit authority has deemed the provision procedural. Barnes v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir.1992) (holding one-year limit expressed in § 1446(b) “merely modal and formal and may be waived.”). However, the appellate court has not extended its decision to a situation such as that faced by the court today. See Ventana Investments v. 909 Corp., 65 F.3d 422, 425 n. 7 (5th Cir.1995) (citing Barnes with approval). In Barnes, the plaintiff argued for remand more than twenty months subsequent to the removal on the basis that the defendant removed the diversity action outside the one-year limitation period. Barnes, 962 F.2d at 514-16. The court held that Barnes had waived his right to object pursuant to § 1447(c). Id. at 516. That section provides that “[a] motion to remand the case on the basis of any defect in removal procedure must be made within SO days after the filing of the notice of removal.” 28 U.S.C. § 1447(c) (emphasis added). In distinguishing between removal jurisdiction and original or subject matter jurisdiction, the court noted that §§ 1446(b) and 1447(e) are procedural provisions as they reference defects which do “not go to the question of whether the case originally could have been brought in federal district court.” Barnes, 962 F.2d at 516 (citing Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1544 (5th Cir.), cert. denied, 502 U.S. 963, 112 S.Ct. 430, 116 L.Ed.2d 449 (1991); In re" } ]

[ { "docid": "3088927", "title": "", "text": "Egan’s participation in the conspiracy or only in respect of Union Electric, as Egan sought to exclude it generally and without requesting a limiting instruction, there could be no error in its admission. Greater New York Live Poultry C. of C. v. United States, 2 Cir., 47 F.2d 156, 159, certiorari denied 283 U.S. 837, 51 S.Ct. 486, 75 L.Ed. 1448; American Medical Ass’n v. United States, 76 U.S.App.D.C. 70, 130 F.2d 233, 251 (affirmed on other grounds, 317 U.S. 519, 63 S.Ct. 326, 87 L.Ed. -). See and compare, also, Allen v. United States, 7 Cir., 4 F.2d 688; Nyquist v. United States, 6 Cir., 2 F.2d 504, certiorari denied, 267 U.S. 606, 45 S.Ct. 508, 69 L.Ed. 810. “Wide latitude is allowed in the presentation of evidence as to the facts and circumstances in a conspiracy case.” Garrison v. United States, 5 Cir., 135 F.2d 877, 878. See, also, Hartzell v. United States, 8 Cir., 72 F.2d 569, 584, certiorari denied 293 U.S. 621, 55 S.Ct. 216, 79 L. Ed. 708. It is “within the discretion of the trial court to admit evidence which even remotely tended to establish the conspiracy charged.” Devoe v. United States, 8 Cir., 103 F.2d 584, 588, 589, certiorari denied 309 U.S. 571, 60 S.Ct. 84, 84 L.Ed. 479. In view of the length of the trial in this case and the volume of evidence, the language of the Ninth Circuit Court of Appeals in Simons v. United States, 119 F.2d 539, 559, certiorari denied 314 U.S. 616, 62 S.Ct. 78, 86 L.Ed. 496, is peculiarly apt. The situation in that case was comparable to the situation presented here, and there the court said: “It would not be surprising if there had crept into the trial certain phases of immaterial evidence. * * * we have carefully gone over the entire case and we are constrained to say that while some extraneous matter has found its way into the evidence even against the high vigilance of appellants’ counsel we cannot say but that the Court studiously saw to it that the whole story" } ]

[ { "docid": "22966952", "title": "", "text": "mounted ■ in plain 14 karat white gold mounting. “4. One diamond and onyx bar pin containing about 27 small diamonds and about 52 small onyx. “5. One Tiffany and Company diamond combination necklace, pendent and bracelet set containing one pear shaped diamond of approximately 1% carat in size, about 8 baguette diamonds, about 157 small round diamonds and in the necklace portion about 502 small full cut diamonds, a further description of said merchandise being to the grand jurors unknown, which said merchandise was of a value of more than Five Thousand ($5,000.00) Dollars, to-wit-: of a value of Twenty Thousand ($20,000.00) Dollars, which said property had therefore been stolen, converted or taken by fraud as he, the said defendant at the time of transporting said merchandise as aforesaid, well knew.” . O’Neill v. United States, 8 Cir., 19 F.2d 322; Poffenbarger v. United States, 8 Cir., 20 F.2d 42; Troutman v. United States, 10 Cir., 100 F.2d 628; Pines v. United States, 8 Cir., 123 F.2d 825; Price v. United States, 5 Cir., 150 F. 2d 283; District of Columbia v. Hunt, 82 U.S.App.D.C. 159, 163 F.2d 833. . Rule 7(c), Federal Rules of Criminal Procedure, 18 U.S.C.A. . Cf. Millard v. United. States, 5 Cir., 148 F.2d 154; Norris v. United States, 5 Cir., 152 F.2d 808; Myles v. United States, 5 Cir., 170 F.2d 443. . Footnote 2, supra. . See 62 Stat. 683, 806. . Johnson v. United States, 5 Cir., 124 F.2d 101; United States v. Krepper, 3 Cir., 159 F.2d 958, 970; Williams v. United States, 5 Cir., 179 F.2d 656, 659; Edgerton v. United States, 9 Cir., 143 F.2d 697, 700. . Mattox v. United States, 146 U.S. 140, 150, 13 S.Ct. 50, 36 L.Ed. 917; Wheaton v. United States, 8 Cir., 133 F.2d 522; Ryan v. United States, 89 U.S.App.D.C. 328, 191 F.2d 779, and cases cited. HUTCHESON, Chief Judge (dissenting). Of the clear opinion; that appellant’s motion to dismiss the indictment because it alleged disjunctively instead of con-junctively that the property in question “had been stolen, converted or taken by" }, { "docid": "23681459", "title": "", "text": "particularly the National Motor Vehicle Theft Act, (18 U.S.O.A. § 408), that is to say: To transport and cause to be transported in interstate commerce * * * certain motor vehicles which bad theretofore hoen stolen from the owners thereof, and to receive, conceal, store, barter, sell and dispose of said motor vehicles, the same moving in and which were a part of interstate commerce, knowing the same to have been stolen:” Then followed the list of the overt acts charged to have been committed in furtherance of the conspiracy. Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509; Casebeer v. United States, 10 Cir., 87 F.2d 668; Hewitt v. United States, 8 Cir., 110 F.2d 1; Sutton v. United States, 5 Cir., 157 F.2d 661; Pickens v. United States, 5 Cir., 123 F.2d 333; Barkdoll v. United States, 9 Cir., 147 F.2d 617; Center v. United States, 4 Cir., 86 F.2d 127; Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861. Chew v. United States, 8 Cir., 9 F.2d 348, 352; Frohwerk v. United States, 249 U.S. 204, 209, 39 S.Ct. 249, 63 L.Ed. 561. Williams v. United States, 6 Cir., 3 F.2d 933, 934; Rudner v. United States, 6 Cir., 281 F. 516, 518; Center v. United States, 4 Cir., 96 F.2d 127, 129; Rumely v. United States, 2 Cir., 293 F. 532; Jelke v. United States, 7 Cir., 255 F. 264. Chrysler v. Zerbst, 10 Cir., 81 F.2d 975; Record v. Hudspeth, 10 Cir., 126 F.2d 215; Lindsay v. United States, 10 Cir., 134 F.2d 960. O’Neill v. United States, 8 Cir., 19 F.2d 322; Poffenbarger v. United States, 8 Cir., 20 F.2d 42; Ackley v. United States, 8 Cir., 200 F. 217; Troutman v. United States, 10 Cir., 100 F.2d 628; Price v. United States, 5 Cir., 150 F.2d 283; Mellor v. United States, 8 Cir., 160 F.2d 757; 42 C.J.S., Indictments and Informations, § 166. Miller v. United States, 10 Cir., 120 F.2d 968; Forakis v. United States, 10 Cir., 137 F.2d 581; Rose v. United States," }, { "docid": "23689885", "title": "", "text": "by Bartlett to Combs were admissible against Bartlett but not against Edwards, and in that there were many facts proven from which the jury might have inferred that Bartlett devised and perpetrated the scheme that did not apply to Edwards. Therefore, we conclude that a reversal as to Edwards does not require a reversal as to Bartlett. The judgment is affirmed as to Bartlett and reversed as to Edwards with instructions to grant her a new trial. Stamps covering ten pounds of sugar were very rare. Minner v. United States, 10 Cir., 57 F.2d 506, 511; Thomas v. United States, 10 Cir., 57 F.2d 1089, 1041. Lee Dip v. United States, 9 Cir., 92 F.2d 802, 803; Quercia v. United States, 1 Cir., 70 F.2d 997, 999; Lewis v. People, 109 Colo. 89, 123 P.2d 398, 401; People v. Pierce, 387 Ill. 608, 57 N.E.2d 345, 348; O’Neil v. State, 237 Wis. 391, 296 N.W. 96, 102, 135 A.L.R. 719; Commonwealth v. Spardute, 278 Pa. 37, 122 A. 161, 165. Braatelien v. United States, 8 Cir., 147 F.2d 888, 893; Hoeppel v. United States, 66 App.D.C. 71, 85 F.2d 237, 242; Rand v. United States, 8 Cir., 77 F.2d 52, 54; United States v. Kendall, 7 Cir., 165 F.2d 117, 119. Braatelien v. United States, 8 Cir., 147 F.2d 888, 893; Lee Dip v. United States, 9 Cir., 92 F.2d 802, 804; United States v. Von Clemm, 2 Cir., 136 F.2d 968, 970. Cummings v. United States, 9 Cir., 15 F.2d 168, 169; Commonwealth v. Riches, 219 Mass. 433, 107 N.E. 371, 373; United States v. Rosenberg, 2 Cir., 150 F.2d 788, 794; Licavoli v. State, Ohio App., 34 N.E.2d 450, 454, 455. Neal v. State, 104 Neb. 56, 175 N.W. 669, 670; People v. Williams, 30 Cal.App.2d 234, 85 P.2d 974, 976; People v. Halpin, 276 Ill. 363, 114 N.E. 932, 934 935. 8/23/1945 70.000 pounds 9/4/1945 2,054 pounds 9/13/1945 140.000 pounds 11/5/1945 59,870 pounds 11/15/1945 96,120 pounds 11/26/1945 95.000 pounds 12/3/1945 95,050 pounds 12/6/1945 156.000 pounds 12/13/1945 250.000 pounds Minner v. United States, 10 Cir, 57 F.2d 506," }, { "docid": "23681460", "title": "", "text": "Cir., 9 F.2d 348, 352; Frohwerk v. United States, 249 U.S. 204, 209, 39 S.Ct. 249, 63 L.Ed. 561. Williams v. United States, 6 Cir., 3 F.2d 933, 934; Rudner v. United States, 6 Cir., 281 F. 516, 518; Center v. United States, 4 Cir., 96 F.2d 127, 129; Rumely v. United States, 2 Cir., 293 F. 532; Jelke v. United States, 7 Cir., 255 F. 264. Chrysler v. Zerbst, 10 Cir., 81 F.2d 975; Record v. Hudspeth, 10 Cir., 126 F.2d 215; Lindsay v. United States, 10 Cir., 134 F.2d 960. O’Neill v. United States, 8 Cir., 19 F.2d 322; Poffenbarger v. United States, 8 Cir., 20 F.2d 42; Ackley v. United States, 8 Cir., 200 F. 217; Troutman v. United States, 10 Cir., 100 F.2d 628; Price v. United States, 5 Cir., 150 F.2d 283; Mellor v. United States, 8 Cir., 160 F.2d 757; 42 C.J.S., Indictments and Informations, § 166. Miller v. United States, 10 Cir., 120 F.2d 968; Forakis v. United States, 10 Cir., 137 F.2d 581; Rose v. United States, 10 Cir., 128 F.2d 622. Craig v. United States, 9 Cir., 81 F.2d 816; Reavis v. United States, 10 Cir., 106 F.2d 982; Egan v. United States, 8 Cir., 137 F.2d 369; Martin v. United States, 10 Cir., 100 F.2d 490; Marx v. United States, 8 Cir., 86 F.2d 245; Marino v. United States, 9 Cir., 91 F.2d 691, 113 A.L.R. 975; Phelps v. United States, 8 Cir., 160 F.2d 858; 15 C.J.S., Conspiracy, § 48. Reavis v. United States, 10 Cir., 106 F.2d 982; Egan v. United States, 8 Cir., 137 F.2d 369; Garrison v. United States, 5 Cir., 135 F.2d 877; Devoe v. United States, 8 Cir., 103 F.2d 584; Simons v. United States, 9 Cir., 119 F.2d 539; Phelps v. United States, 8 Cir., 160 F.2d 858; Braatelien v. United States, 8 Cir., 147 F.2d 888; 15 C.J.S., Conspiracy, § 93." }, { "docid": "2908348", "title": "", "text": "he may assign error on the giving or failure to give an instruction. It may be conceded that it is the court’s duty to instruct on the basic issues necessary for the jury’s guidance, without request therefor, but the matter complained of here is not of that nature. It has been generally held that, where evidence is admissible as to one of several defendants, it must be received and that it then becomes the duty of those desiring that it be limited to submit a proper instruction and, failing in this, they may not predicate error on the failure to limit the scope of such testimony. Other errors are urged for reversal. We have given them consideration and find them without merit. Affirmed. . Rule 14: “If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.” . . Brady v. United States, 8 Cir., 39 F.2d 312; Latses v. United States, 10 Cir., 45 F.2d 949; Cochran v. United States, 8 Cir., 41 F.2d 193. . United States v. Cohen, 2 Cir., 124 F.2d 164. . Todorow v. United States, 9 Cir., 173 F.2d 439. . Troutman v. United States, 10 Cir., 100 F.2d 628; Reavis v. United States, 10 Cir., 106 F.2d 982; Bryant v. United States, 5 Cir., 257 F. 378; Jarabo v. United States, 1 Cir., 158 F.2d 509." }, { "docid": "22942997", "title": "", "text": "usually is established by circumstantial evidence; by inferences from the evidence of relationship of the parties and by overt acts, conduct and other probative circumstances. Marbs v. United States, 8 Cir., 250 F.2d 514, 522, 523, cert. den. sub nom. Sarkis v. United States, 356 U.S. 919, 78 S.Ct. 703, 2 L.Ed.2d 715; Marx v. United States, 8 Cir., 86 F.2d 245, 250; Phelps v. United States, 8 Cir., 160 F.2d 858, 867, cert. den. sub nom. Peters v. United States, 334 U.S. 860, 68 S.Ct. 1525, 92 L. Ed. 1780; Madsen v. United States, 10 Cir., 165 F.2d 507, 511. “Conspirators ordinarily do not announce that they have joined their efforts for the purpose of engaging in or furthering some unlawful scheme or plan — rather they are inclined to cover their machinations, thereby casting upon the prosecution the burden, sometimes difficult, of establishing the conspiracy, and the overt acts in consequence thereof, by circumstantial evidence,- — by actions of the conspirators.” Blumenfield v. United States, 8 Cir., 284 F.2d 46, 53, 54, cert. den. 365 U.S. 812, 81 S.Ct. 693, 5 L.Ed.2d 692. “Participation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a ‘development and a collocation of circumstances’.” Glasser v. United States, 315 U.S. 60, at p. 80, 62 S.Ct. 457, 469, 86 L.Ed. 680; where the evidence affords satisfactory proof that a conspiracy has been formed, “but slight evidence connecting a defendant therewith may still be substantial, and if so, sufficient.” Galatas v. United States, 8 Cir., 80 F.2d 15, 24, cert. den. 297 U.S. 711, 56 S.Ct. 574, 80 L.Ed. 998; McDonald v. United States, 8 Cir., 89 F.2d 128, 138, 139, cert. den. 301 U.S. 697, 57 S.Ct. 925, 81 L.Ed. 1352; Marx v. United States, supra, 86 F.2d 245, at p. 250. As pertinently stated by this Court in Phelps v. United States, supra, 160 F.2d 858, at p. 867: “Once there is satisfactory proof that a conspiracy has been formed, the question of a particular defendant’s connection with it may" }, { "docid": "23545058", "title": "", "text": "Cir., 160 F.2d 858, 867, cert. den. sub nom. Peters v. United States, 334 U.S. 860, 68 S.Ct. 1525, 92 L.Ed. 1780; Madsen v. United States, 10 Cir., 165 F.2d 507, 511. ‘Conspirators ordinarily do not announce that they have joined their efforts for the purpose of engaging in or furthering some unlawful scheme or plan — rather they are inclined to cover their machinations, thereby casting upon the prosecution the burden, some times difficult, of establishing the conspiracy, and the overt acts in consequence thereof, by circumstantial evidence, — by actions of the conspirators.’ Blumenfield v. United States, 8 Cir., 284 F.2d 46, 53, 54, cert. den. 365 U.S. 812, 81 S.Ct. 693, 5 L.Ed.2d 692. “ ‘Participation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a “development and a collocation of circumstances”.’ Glasser v. United States, 315 U.S. 60, at p. 80, 62 S.Ct. 457, 469, 86 L.Ed. 680; where the evidence affords satisfactory proof that a conspiracy has been formed, ‘but slight evidence connecting a defendant therewith may still be substantial, and if so, sufficient.’ Galatas v. United States, 8 Cir., 80 F.2d 15, 24, cert. den. 297 U.S. 711, 56 S.Ct. 574, 80 L.Ed. 998; McDonald v. United States, 8 Cir., 89 F.2d 128, 138, 139, cert. den. 301 U.S. 697, 57 S.Ct. 925, 81 L.Ed. 1352; Marx v. United States, supra, 86 F.2d 245, at p. 250. As pertinently stated by this Court in Phelps v. United States, supra, 160 F.2d 858, at p. 867: ‘Once there is satisfactory proof that a conspiracy has been formed, the question of a particular defendant’s connection with it may be merely a matter of whether the stick fits so natural into position in the fagot as to convince that it is part of it.’ Cf. United States v. Cohen, 3 Cir., 197 F.2d 26, 29; Nye & Nissen v. United States, 9 Cir., 168 F.2d 846, 852, aff’d 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919; Meyers v. United States, 6 Cir., 94 F.2d 433," }, { "docid": "17767241", "title": "", "text": "United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419; Duplex Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196; Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254, 27 A.L.R. 375; Marino v. United States, 9 Cir., 91 F.2d 691, 113 A.L.R. 975; Maryland Casualty Co. v. Hosmer, 1 Cir., 93 F.2d 365. And the agreement need not be in any particular form. It is enough if the minds of the parties meet in an understanding way with the single design to accomplish a common purpose; and the union of the minds may be proved by circumstantial evidence. Proof of an agreement in writing or in formal words is not necessary. The agreement may be inferred from statements, acts and circumstances. Cases abound enunciating the doctrine that a conspiracy is frequently not susceptible of direct proof, and may be established by circumstantial evidence. Parnell v. United States, 10 Cir., 64 F.2d 324; Telman v. United States, 10 Cir., 67 F.2d 716; Brayton v. United States, 10 Cir., 74 F.2d 389; Jaramillo v. United States, 10 Cir., 76 F.2d 700; Marx v. United States, 8 Cir., 86 F.2d 245; Marino v. United States, supra; Robinson v. United States, 5 Cir., 94 F.2d 752. An appellate court does not weigh evidence. It merely determines whether there was substantial evidence to support the verdict. And in determining that question the evidence and the inferences and deductions reasonably to be drawn from it must be viewed in the light most favorable to the Government. Zottarelli v. United States, 6 Cir., 20 F.2d 795; Rosser v. United States, 4 Cir., 75 F.2d 498; Walker v. United States, 8 Cir., 93 F.2d 383, certiorari denied 303 U.S. 644, 58 S.Ct. 642, 82 L.Ed. 1103; Meyers v. United States, 6 Cir., 94 F.2d 433; Diehl v. United States, 8 Cir., 98 F.2d 545. It is unnecessary to express an opinion here as to whether the evidence proved a conspiracy to violate the laws of the State of Oklahoma prohibiting the manufacture, possession, or sale of intoxicating" }, { "docid": "22284637", "title": "", "text": "count 15, and acquitted on all others; and they appealed from the respective judgments and sentences imposed upon them. It is argued that count 14 is duplicitous in that it charges separate and distinct violations of the Securities Act, 48 Stat. 74, 15 U.S.C.A. § 77a et seq. Section 17 of the act, 15 U.S.C.A. § 77q, provides that it shall be unlawful for any person in the sale of securities by the use of means or instruments of transportation or communications in interstate commerce or by use of the mails (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 statement 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. The statute thus embraces in the disjunctive three separate and distinct acts as a crime. The indictment charges the three offenses in the language of the statute, but they are charged in the conjunctive. An indictment charging a statutory offense must follow the statute creating it; but where the statute denounces several acts as a crime, they may be charged in one indictment or in a single count if they are connected in the conjunctive. An indictment drawn in that manner is not duplicitous, and it suffices to prove any one or more of the charges. Crain v. United States, 162 U.S. 625, 16 S.Ct. 952, 40 L.Ed. 1097; Ackley v. United States, 8 Cir., 200 F. 217; Simpson v. United States, 9 Cir., 229 F. 940; Dell Aira v. United States, 9 Cir., 10 F.2d 102; Chapman v. United States, 5 Cir., 10 F.2d 124; O’Neill v. United States, 8 Cir., 19 F.2d 322; Poffenbarger v. United States, 8 Cir., 20 F.2d 42; Collins v. United States, 8 Cir., 20 F.2d 574; Wolpa v. United States, 8 Cir., 86 F.2d 35. It is further contended that count 15" }, { "docid": "5871711", "title": "", "text": "form, even if the sellers had knowledge that the sugar might be used for an illegal purpose.” United States v. Pandolfi, 2 Cir., 110 F.2d 736. The minority: Di Bonaventura v. United States, 4 Cir., 15 F.2d 494; United States v. Russell, D.C., 41 F.2d 852; Young v. United States, 5 Cir., 48 F.2d 26; United States v. Peoni, 2 Cir., 100 F.2d 401, noted in Application of Conspiracy Statute to Prosecution For Sale of Counterfeit Money, 48 Yale Law Journal 1447; United States v. Falcone, 2 Cir., 109 F.2d 579 above cited. The majority: Rudner v. United States, 6 Cir., 281 F. 516, certiorari denied, 260 U.S. 734, 43 S.Ct. 95, 67 L.Ed. 487; Simpson v. United States, 4 Cir., 11 F.2d 591; Pattis v. United States, 9 Cir., 17 F.2d 562, noted in Criminal Law — Conspiracy—One Who Knowingly Assists Others to Accomplish Object of A Conspiracy Is Co-conspirator, 12 Minnesota Law Review 77; Zito v. United States, 7 Cir., 64 F.2d 772; Borgia v. United States, 9 Cir., 78 F.2d 550; Marino v. United States, 9 Cir., 91 F.2d 691, 113 A.L.R. 975; Backun v. United States, 4 Cir., 112 F.2d 635. See footnote 7 above; United States v. Lancaster, C.C., 44 F. 896, 10 L.R.A. 333; Laska v. United States, 10 Cir., 82 F.2d 672; United States v. Dellaro, 2 Cir., 99 F.2d 781; People v. Bain, 359 Ill. 455, 195 N.E. 42; State v. Dreany, 65 Kan. 292, 169 P. 182; Solomon v. State, 168 Tenn. 180, 76 S.W.2d 331; Levering v. Commonwealth, 132 Ky. 666, 117 S.W. 253, 136 Am.St.Rep. 192, 19 Ann.Cas. 140; cf. Luteran v. United States, 8 Cir., 93 F.2d 395 (a different result obtains when action is a duty). Kreiss v. Seligman, 8 Barb., N.Y., 439; Tracy v. Talmage, 14 N.Y. 162, 67 Am.Dec. 132; Jacobs v. Danciger, 328 Mo. 458, 41 S.W.2d 389, 77 A.L.R. 1237; Holman v. Johnson, 1 Cowp. 341 (K.B. 1775); Hodgson v. Temple, 5 Taunt. 181 (C.P. 1813); 2 Page, Contracts, 2d Ed., § 1108; contra: Langton v. Hughes, 1 M. & S. 593 (K.B." }, { "docid": "6055496", "title": "", "text": "whether these acts were performed before the parties came there, has no direct or vital bearing, on the question of conspiracy. These acts were at most incidental, in the closing transaction and have very little probative value, if any, on the important question whether appellants conspired and confederated together to defraud the United States. They are not of sufficient force to lead us to conclude, that they probably would bring about a different result on a second trial. The motion to remand is, therefore, overruled, and the judgment appealed from is affirmed. Glasser v. U. S., 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; Cruz v. U. S., 10 Cir., 106 F.2d 828; Reavis v. U. S., 10 Cir., 106 F.2d 982; Oliver v. U. S., 10 Cir., 121 F.2d 245; Bacon v. U. S., 10 Cir., 127 F.2d 985; Madsen v. U. S., 10 Cir., 165 F.2d 507. Young v. U. S., 10 Cir., 168 F.2d 212; Garhart v. U. S., 10 Cir., 157 F.2d 777. Zito v. U. S., 7 Cir., 64 F.2d 772; King v. Leach, 5 Cir., 131 F.2d 8; Kohl v. Lehlback, 160 U.S. 293, 16 S.Ct. 304, 40 L.Ed. 432; Wassum v. Feeney, 121 Mass. 93, 23 Am.Rep. 258; People v. Marconi, 118 Cal.App. 683, 5 P.2d 974; 50 C.J.S., Juries § 252, page 1014. U. S. v. Socony-Vacuum Oil Co., 310 U.S. 150, 239, 60 S.Ct. 811, 84 L.Ed. 1129; New York Cent. R. Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706; Metropolitan Life Ins. Co. v. Banion, 10 Cir., 106 F.2d 561; Pietch v. U. S., 10 Cir., 110 F.2d 817, 129 A.L.R. 563; Estep v. U. S., 10 Cir., 140 F.2d 40; Vendetti v. U. S., 9 Cir., 45 F.2d 543. Evans v. United States, 10 Cir., 122 F.2d 461; Rule 33, Federal Rules of Criminal Procedure, 18 U.S.C.A. Long v. United States, 10 Cir., 139 F.2d 652; Evans v. United States, 10 Cir., 122 F.2d 461; 23 C.J.S., Criminal § 1461, page 1253; 39 Am.Jur., Section 165, page 172." }, { "docid": "22444084", "title": "", "text": "Marshal, he could not “complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws.” Powell v. Sanford, 5 Cir., 156 F.2d 355, 356. . Vanover v. Cox, 8 Cir., 136 F.2d 442, 443-444, certiorari denied 320 U.S. 779, 64 S.Ct. 93, 88 L.Ed. 468. This view is restated in Stamphill v. Johnston, 9 Cir., 136 F.2d 291, 292, certiorari denied 320 U.S. 766, 64 S.Ct. 70, 88 L.Ed. 457. . Ponzi v. Fessenden, 258 U.S. 254, 260, 42 S.Ct. 309; United States ex rel. Moore v. Traeger, 9 Cir., 44 F.2d 312, 313; Cato v. Smith, 9 Cir., 104 F.2d 885, 886, certiorari denied 308 U.S. 608, 60 S.Ct. 177, 84 L.Ed. 508; Kirk v. Squier, 9 Cir., 150 F.2d 3, 8, certiorari denied 326 U.S. 775, 66 S.Ct. 265, 90 L.Ed. 469; Gunton v. Squier, 9 Cir., 185 F.2d 470, 471; Wall v. Hudspeth, 10 Cir., 108 F.2d 865, 866; Lunsford v. Hudspeth, 10 Cir., 126 F.2d 653, 655; Stamphill v. United States, 10 Cir., 135 F.2d 177, 178; Rosenthal v. Hunter, 10 Cir., 164 F.2d 949, 950; Rawls v. United States, 10 Cir., 166 F.2d 532, 534, certiorari denied 334 U.S. 848, 68 S.Ct. 1498, 92 L.Ed. 1771; Craig v. Hunter, 10 Cir., 167 F.2d 721, 722; Stripling v. United States, 10 Cir., 172 F.2d 636, 637; Vanderpool v. Hunter, 10 Cir., 177 F.2d 716, 717, 718; Mitchell v. Boen, 10 Cir., 194 F.2d 405, 407; Werntz v. Looney, 10 Cir., 208 F.2d 102, 104; United States ex rel. Demarois v. Farrell, 8 Cir., 87 F.2d 957, 962, certiorari denied 302 U.S. 683, 58 S.Ct. 31, 82 L.Ed. 527; Banks v. O’Grady, 8 Cir., 113 F.2d 926, 927; United States ex rel. Spellman v. Murphy, 7 Cir., 217 F.2d 247, 251; United States ex rel. Moses v. Kipp, 7 Cir., 232 F.2d 147, 150; Florio v. Edwards, 5 Cir., 80 F.2d 509, 510; Ex parte Marrin, D.C., 164 F. 631, 637; United States v. Taylor, D.C., 284 F. 489, 490; United States v. Jackson, D.C., 134 F.Supp. 872, 873; People" }, { "docid": "20156965", "title": "", "text": "40 U.S.C.A. § 258a. James v. Dravo Contracting Co., 302 U.S. 134, 147, 58 S.Ct. 208, 82 L.Ed. 155, 114 A.L.R. 318; 29 C.J.S., Eminent Domain, §§ 2, 3. Liberty Cent. Trust Co. v. Greenbrier College, D.C., 50 F.2d 424, 429; Sweet v. Rechel, 159 U.S. 380, 16 S.Ct. 43, 40 L.Ed. 188; Joslin Mfg. Co. v. Providence, 262 U.S. 668, 677, 43 S.Ct. 684, 67 L.Ed. 1167; Hurley v. Kincaid, 285 U.S. 95, 104, 52 S.Ct. 267, 76 L.Ed. 637. 28 U.S.C.A. § 41(20). Hurley v. Kincaid, note 10; Jacobs et al. v. United States, 290 U.S. 13, 16, 54 S.Ct. 26, 78 L.Ed. 142, 96 A.L.R. 1. United States v. Meyer, 7 Cir., 113 F.2d 387, 388, 393; Barnidge v. United States, 8 Cir., 101 F.2d 295, 298. See note 7. 40 U.S.C.A. § 258. 28 U.S.C.A. § 724. Chappell v. Uniced States, 160 U.S. 499, 512-514, 16 S.Ct. 397, 40 L.Ed. 510. See United States v. Meyer, 7 Cir., 113 F.2d 387, 388, 394. See Commercial Station Post Office v. United States, 8 Cir., 48 F.2d 183; United States v. 137.82 Acres of Land, D.C., 31 F.Supp. 723, 725. United States v. Meyer, 7 Cir., 113 F.2d 387, 392, 393. Ryan v. Chicago, B. & Q. R. R., 7 Cir., 59 F.2d 137, 144. See 30 C.J.S., Equity, § 335, note 42. Danforth v. United States, 308 U.S. 271, 283, 60 S.Ct. 231, 84 L.Ed. 240; 30 C.J.S., Equity, § 335, note 41. See eases cited in Barnidge v. United States, 101 F.2d at page 298. See 30 C.J.S., Equity, §§ 335-338, notes 40 to 68. After this opinion was prepared, and when ready for announcement, I learn that the President has approved the Second War Powers Act of 1942. See U.S. Law Week, Vol. 10, No. 37, March 24, 1942. By section 201 of Title II, 50 U.S.C.A. § 171 note, 50 U.S.C.A. Appendix § 632, express power for taking possession in circumstances like these seems now to have been granted. Commercial Station Post Office v. United States, 8 Cir., 48 F.2d 183, 184." }, { "docid": "23689887", "title": "", "text": "511; Hogg v. United States, 5 Cir., 53 F.2d 967, 969; Galatas v. United States, 8 Cir., 80 F.2d 15, 23; Oras v. United States, 9 Cir., 67 F.2d 463, 466. Galatas v. United States, 8 Cir,, 80 F.2d 15, 23; Sabbatino v. United States, 2 Cir., 298 F. 409, 412; United States v. Alfano, 3 Cir., 152 F.2d 395, 397. Van Riper v. United States, 2 Cir., 13 F.2d 961, 967; Merrill v. United States, 5 Cir., 40 F.2d 315, 316; Strickland v. State, 122 Fla. 384, 165 So. 289, 290. Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351; West India Oil Co. v. Domenech, 311 U.S. 20, 29, 61 S.Ct. 90, 85 L.Ed. 16; United States v. Jackson, 302 U.S. 628, 631, 58 S.Ct. 390, 82 L.Ed. 488; United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 84 L.Ed. 181. Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351. United States v. Jackson, 302 U.S. 628, 631, 58 S.Ct. 390, 82 L.Ed. 488. United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 84 L.Ed. 181. See, also, United States v. Gilliland, 312 U.S. 86, 95, 61 S.Ct. 518, 85 L.Ed. 598. Rule No. 30, Fed.Rules of Criminal Procedure, 18 U.S.C.A. following section 687; Berenbeim v. United States, 10 Cir., 164 F.2d 679. Loney v. United States, 10 Cir., 151 F.2d 1, 5; Turk v. United States, 10 Cir., 38 F.2d 630, 631; Smith v. United States, 10 Cir., 38 F.2d 632, 633; Fisher v. Schilder, 10 Cir., 131 F.2d 522, 524. United States v. Le Fanti, D.C.N.J., 255 F. 210, 215; Chiaravalloti v. United States, 7 Cir., 60 F.2d 192, 193; State v. Jackett, 45 Idaho 720, 264 P. 875, 876; Hunter v. State, 63 Okl.Cr. 24, 72 P.2d 399, 402; 23 C.J.S,, Criminal Law, § 1402; 42 C.J.S., Indictments and Infor-mations, § 160. Cf., Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct 189, 76 L.Ed 356, 80 A.L.R. 161. “ * * * whoever" }, { "docid": "22199174", "title": "", "text": "429, and cases cited; United States v. Minnec, 7 Cir., 104 F.2d 575, 577. See, in this connection: 8 C.J.S., Bail, pages 96-107, §§ 48-51; Hudson v. Parker, 156 U.S. 277, 15 S.Ct. 450, 39 L.Ed. 424; Kitrell v. United States, 10 Cir., 76 F.2d 333; Moder v. United States, 61 App.D.C. 300, 62 F.2d 462; Connley v. United States, 9 Cir., 41 F.2d 49; Lewis v. United States, 8 Cir., 14 F.2d 111; Jones v. United States, 4 Cir., 12 F.2d 708; Rossi v. United States, 8 Cir., 11 F.2d 264; United States v. Motlow, 7 Cir., 10 F.2d 657; In re Williams, 54 App.D.C. 65, 294 F. 996; Ex parte Bollman (Ex parte Swartwout), 4 Cranch. 75, 2 L.Ed. 554; 8 C.J.S., Bail, page 93, § 46. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545; Rosen v. United States, 161 U.S. 29, 35, 40, 16 S.Ct 434, 40 L.Ed. 606; Cochran v. United States, 8 Cir., 41 F.2d 193, 198; Chew v. United States, 8 Cir., 9 F.2d 348, 353; Rimmerman v. United States, 8 Cir., 186 F. 307, 310; Rinker v. United States, 8 Cir., 151 F. 755, 759; Robinson v. United States, 9 Cir., 33 F.2d 238, 240; Salerno v. United States, 8 Cir., 61 F.2d 419, 421; Goldstein v. United States, 8 Cir., 63 F.2d 609, 612; Mulloney v. United States, 1 Cir., 79 F.2d 566, 572; Stumbo v. United States, 6 Cir., 90 F.2d 828, 832; Landay v. United States, 6 Cir., 108 F.2d 698, 703. Fidelity & Deposit Co. v. L. Bucki & Son Lumber Co., 189 U.S. 135, 143, 23 S.Ct. 582, 47 L.Ed. 744; Hardy v. United States, 186 U.S. 224, 22 S.Ct. 889, 46 L.Ed. 1137; Goldsby v. United States, 160 U.S. 70, 72, 16 S.Ct. 216, 40 L.Ed. 343; Isaacs v. United States, 159 U.S. 487, 489, 16 S.Ct. 51, 40 L.Ed. 229; United States v. De Armond, 8 Cir., 48 F.2d 465, 466; McLaughlin v. United States, 8 Cir., 84 F.2d 561, 562; Paschen v. United States, 7 Cir., 70 F.2d" }, { "docid": "22953785", "title": "", "text": "trial court to see to it that defendant’s attorney perfects an appeal. De Maurez v. Swope, 9 Cir., 104 F.2d 758, 759. We conclude that the judgment denying discharge on habeas corpus was right and it is accordingly affirmed. See Goldsby v. United States, 160 U. S. 70, 73, 16 S.Ct. 216, 40 L.Ed. 343; Garrison v. Johnston, 9 Cir., 104 F. 2d 128, 130. Schultz v. Zerbst, 10 Cir., 73 F.2d 668, 670; Sansone v. Zerbst, 10 Cir., 73 F.2d 670, 672. Franklin v. Biddle, 8 Cir., 5 F.2d 19, 20; Schultz v. Zerbst, supra. See Goto. v. Lane, 265 U.S. 393, 401, 402, 44 S.Ct. 525, 68 L.Ed. 1070; Farnsworth v. Zerbst, 5 Cir., 98 F.2d 541, 543. Segurola v. United States, 275 U.S. 106, 111, 112, 48 S.Ct. 77, 72 L.Ed. 186; Rossini v. United States, 8 Cir., 6 F. 2d 350, 352, 353; Patterson v. United States, 9 Cir., 31 F.2d 737, 738. Zahn v. Hudspeth, 10 Cir., 102 F.2d 759, 761; Belt v. Zerbst, 10 Cir., 82 F.2d 18, 19, certiorari denied 298 U.S. 667, 56 S.Ct. 835, 80 L.Ed. 1391; Norton v. Zerbst, 10 Cir., 83 F.2d 677, certiorari denied 299 U.S. 541, 57 S.Ct. 24, 81 L.Ed. 398; Weeks v. Zerbst, 10 Cir., 85 F.2d 996, 997. Belt v. Zerbst, supra; Thouvenell v. Zerbst, 10 Cir., 83 F.2d 1003, 1004. Buckner v. Hudspeth, 10 Cir., 105 F. 2d 396, 397; Nivens v. Hudspeth, 10 Cir., 105 F.2d 756. Schultz v. Zerbst, supra; Jackson v. United States, 9 Cir., 102 F. 473, 487; Bailey v. United States, 7 Cir., 284 F. 126, 127; Tineher v. United States, 4 Cir., 11 F. 2d 18, 21; Jackson v. United States, 3 Cir., 72 F.2d 764. See, also, Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793, 19 Ann.Cas. 705." }, { "docid": "11860815", "title": "", "text": "him in said cause be and the same is hereby affirmed. . Elder v. United States, 9 Cir., 142 F.2d 199; Muench v. United States, 8 Cir., 96 F.2d 332; Kane v. United States, 8 Cir., 120 F.2d 990. . Emphasis supplied. . 42 C.J.S., Indictments and Information, § 133, p. 1024; Creswell v. State, 161 Tenn. 320, 30 S.W.2d 247; Bosco v. State, 157 Md. 407, 146 A. 238; Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419; Wharton C. R. & P. R., Section 164. . Scott v. Beams, 10 Cir., 122 F.2d 777; Inland Freight Lines v. United States, 10 Cir., 202 F.2d 169. . See Shockley v. United States, 9 Cir., 166 F.2d 704; Savage v. Dist. of Columbia, D.C.Mun.App., 54 A.2d 562. . Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; Hunter v. Wade, 10 Cir., 169 F.2d 973, 8 A.L.R.2d 277; United States v. Lewis, D.C., 114 F.Supp. 512. . Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489; United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211; Doherty v. United States, 10 Cir., 193 F.2d 487; Upshaw v. United States, 10 Cir., 157 F.2d 716; Robinson v. United States, 10 Cir., 143 F.2d 276. . United States v. Russell, 255 U.S. 138, 41 S.Ct. 260, 65 L.Ed. 553; Broadbent v. United States, 10 Cir., 149 F.2d 580; Catrino v. United States, 9 Cir., 176 F.2d 884. . Slade v. United States, 10 Cir., 85 F.2d 786. . Garrison v. United States, 5 Cir., 163 F.2d 874; Colbaugh v. United States, 10 Cir., 15 F.2d 929. . United States v. Russell, 255 U.S. 138, 41 S.Ct. 260, 65 L.Ed. 553; Broadbent v. United States, 10 Cir., 149 F.2d 580. . Dickerson v. United States, 8 Cir., 18 F.2d 887; Mickle v. United States, 8 Cir., 157 F. 229; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. . Dickerson v. United States, 8 Cir., 18 F.2d 887; Hyde v. United States, 4 Cir., 15 F.2d 816; United" }, { "docid": "22814384", "title": "", "text": "O’Brien v. United States, 7 Cir., 1928, 25 F.2d 90; Bayless v. United States, 8 Cir., 1945, 147 F.2d 169; Phillips v. United States, 8 Cir., 1912, 201 F. 259; Collins v. United States, 8 Cir., 1927, 20 F.2d 574; Poffenbarger v. United States, 8 Cir., 1927, 20 F.2d 42; Shepherd v. United States, 8 Cir., 1947, 163 F.2d 974; Daniels v. United States, 9 Cir., 1927, 17 F.2d 339; Collins v. United States, 9 Cir., 1946, 157 F.2d 409; Danziger v. United States, 9 Cir., 1947, 161 F.2d 299; Pietch v. United States, 10 Cir., 1940, 110 F.2d 817, 129 A.L.R. 563; Fowler v. Hunter, 10 Cir., 1947, 164 F.2d 668; Morland v. United States, 10 Cir., 1951, 193 F.2d 297; Ex parte Pickerill, D.C.N.D.Tex.1942, 44 F.Supp. 741. . Shepherd v. United States, 8 Cir., 1947, 163 F.2d 974; Daniels v. United States, 9 Cir., 1927, 17 F.2d 339; McDonald v. Hudspeth, 10 Cir., 1940, 113 F.2d 984; Fowler v. Hunter, 10 Cir., 1947, 164 F.2d 668; Miller v. Overholser, 1953, 92 U.S.App.D.C. 110, 206 F.2d 415. . MacKnight v. United States; Gerardino v. People of Puerto Rico; United States v. Holmes; Hart v. United States; Carter v. State of Tenn.; Worthington v. United States; O’Brien v. United States; Bayless v. United States; Phillips v. United States; Collins v. United States, 8 Cir., supra; Poffenbarger v. United States; Collins v. United States, 9 Cir., supra; Danziger v. United States; Pietch v. United States; Morland v. United States; Ex parte Pickerill, supra note 19; Beavers v. Haubert, 1905, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950; Kong v. United States, 9 Cir., 1954, 216 F.2d 665; Germany v. Hudspeth, 10 Cir., 1954, 209 F.2d 15; D’Aquino v. United States, 9 Cir., 1951, 192 F.2d 338, rehearing denied 203 F.2d 390; United States v. McWilliams, 1947, 82 U.S.App.D.C. 259, 163 F.2d 695; Nolan v. United States, 8 Cir., 1947, 163 F.2d 768; Story v. Hunter, 10 Cir., 1947, 158 F.2d 825; Frizzell v. United States, 1924, 55 App.D.C. 103, 2 F.2d 398. . Collins v. United States, 8 Cir., 1927," }, { "docid": "22284638", "title": "", "text": "crime. The indictment charges the three offenses in the language of the statute, but they are charged in the conjunctive. An indictment charging a statutory offense must follow the statute creating it; but where the statute denounces several acts as a crime, they may be charged in one indictment or in a single count if they are connected in the conjunctive. An indictment drawn in that manner is not duplicitous, and it suffices to prove any one or more of the charges. Crain v. United States, 162 U.S. 625, 16 S.Ct. 952, 40 L.Ed. 1097; Ackley v. United States, 8 Cir., 200 F. 217; Simpson v. United States, 9 Cir., 229 F. 940; Dell Aira v. United States, 9 Cir., 10 F.2d 102; Chapman v. United States, 5 Cir., 10 F.2d 124; O’Neill v. United States, 8 Cir., 19 F.2d 322; Poffenbarger v. United States, 8 Cir., 20 F.2d 42; Collins v. United States, 8 Cir., 20 F.2d 574; Wolpa v. United States, 8 Cir., 86 F.2d 35. It is further contended that count 15 is duplicitous for the reason that it charges a conspiracy to commit two separate offenses, the first being to violate the statute forbidding the use of the mails in furtherance of a scheme or artifice to defraud, and the second being to violate the Securities Act. The essence of the crime of conspiracy is two or more persons combining with the intent and purpose of committing a public offense by doing an unlawful act or doing a lawful act in an unlawful manner. It is a distinct offense from that which the parties intend to accomplish as the result of the conspiracy, and it is complete when the agreement has been formed and one or more overt acts have been done in furtherance of such unlawful design. And a single conspiracy may have for its object and purpose the violation of two or more criminal laws. To illustrate it would be one offense for two or more persons to enter a post office and kill the postmaster or other person having custody of the public" }, { "docid": "3079140", "title": "", "text": "on Count 13 of the indictment is reversed and the judgment and sentence on each of eleven remaining counts of the indictment is affirmed. . 18 U.S.C. § 371 provides: “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be tinea * * * or imprisoned * * * h +h ” or 0 ' . The crime of conspiracy consists in two or more persons combining with the purpose of committing an unlawful act. United States v. Armour & Co., 10 Cir., 137 F.2d 269; Hudspeth v. McDonald, 10 Cir., 120 F.2d 962; Pietch v. United States, 10 Cir., 110 F.2d 817, 129 A.L.R. 563; Reavis v. United States, 10 Cir., 106 F.2d 982; Troutman v. United, States, 10 Cir., 100 F.2d 628, 629; Martin v. United States, 10 Cir., 100 F.2d 490; and Wilder v. United States, 10 Cir., 100 F.2d 177. E. g. Hartzell v. Unite states, 322 680, 64 S.Ct. 1233, 88 L.Ed. 1534; United States v. Postma, 2 Cir., 242 F.2d 488; Herman v. United States, 5 Cir., 289 F.2d 362, cert, denied 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93; Joyce v. United States, 8 Cir., 153 F.2d 364; and Lubin v. United States, 9 Cir., 313 F.2d 419. See generally, Annot., 91 A.D.R.2d 700. . Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774; Price v. United States, 10 Cir., 384 F.2d 650; Baca v. United States, 10 Cir., 383 F.2d 154; Carter v. United States, 10 Cir., 333 F.2d 354; and Marteney v. United States, 10 Cir., 218 F.2d 258, cert, denied 348 U.S. 953, 75 S.Ct. 442, 99 L.Ed. 745." } ]

[ { "docid": "23294857", "title": "", "text": "OPINION and ORDER DOUMAR, District Judge. Presently before the Court are consolidated appeals from rulings of the bankruptcy court issued by two different judges with conflicting results. In one appeal, Ainslie v. Grablowsky, debtor Bernie J. Grablowsky challenges the ruling of the bankruptcy court on the motion for relief from stay filed by John W. Ainslie and John W. Ainslie, Sr. The Ains-lies sought relief from stay in order to purchase from the trustee any non-exempt interest of the debtor in two limited partnerships: Piper Apartments Associates, L.P. (the “Piper partnership”), and Lisa Square Associates, L.P. (the “Lisa Square partnership”). By order of January 6, 1993, the bankruptcy court granted the Ainslies’ motion for relief from stay. In so doing, the bankruptcy court held that Gra-blowsky’s exempt interest in the two partnerships was limited to the $1.00 listed on Schedule C of his Chapter 7 bankruptcy petition as exempt, even though no objection had been filed within thirty days. The other appeal, Addison v. Reavis, presents the objections of the trustee, H. Lee Addison, to the bankruptcy court’s ruling denying his application for authority to sell partnership property. Addison sought leave to sell the interest of debtors Lewis B. Reavis and Carol A. Reavis in a partnership known as January 16th Associates. By order entered on November 25, 1992, the bankruptcy court denied the trustee’s application, holding that by listing the value of debtors’ interest in the partnership at $10.00 and claiming — without any objection being filed by the trustee within thirty days — the amount exempted as $10.00, debtors exempted the entire amount of their interest in the partnership. The debt- or in Grablowsky and the trustee in Addison contend that the bankruptcy courts of this District issued conflicting rulings by holding that Grablowsky exempted only $1.00 worth of his interests in the Piper and Lisa Square partnerships, while Lewis and Carol Reavis exempted their entire interest in January 16th Associates, even though the debtors listed only a $10.00 value of their interest. The parties in Addison v. Reavis elected to adopt the briefs submitted in Ainslie v." } ]

[ { "docid": "1147035", "title": "", "text": "such event, ... the remaining General Partners shall have the option to purchase the interest of the terminated General Partner, pro rata. (Piper Partnership Agreement, p. 29). Although the Lisa Square partnership agreement does not contain specific buyout provisions, paragraph 12(c) states that: In the event of the bankruptcy of any Limited Partner, such Limited Partner’s interest in the partnership shall pass, subject to all the provisions of this Agreement, to the Trustee in Bankruptcy or other legal representative of such bankrupt Limited Partner, who may thereafter request to become a Substituted Limited Partner pursuant to the terms of this Agreement. (Lisa Square Partnership Agreement, p. 3). Pursuant to the partnership agreements plaintiff’s seek relief from stay to buy from the trustee any available “non-exempt” interest debtor may have in Piper and Lisa Square. Therefore, the narrow legal issue before the court is whether the amount exempted by the debtor is $1.00 of his interests in Piper and Lisa Square or the entire value of interests in Piper and Lisa Square. Position of Parties PLAINTIFFS. Plaintiffs’ position is simple; since debt- or declared the value of his exempted interest in Piper and Lisa Square as $1.00 each, debtor’s interest is available for purchase subject to debtor’s $1.00 exemption. DEBTOR. Debtor argues that the recent Supreme Court case of Taylor v. Freeland & Kronz, — U.S.-, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992), is dispositive. In Taylor, the Court held that a party cannot contest a debtor’s exemption beyond the 80-day period Bankruptcy Rule 4003(b) whether or not the debtor had a colorable statutory basis for claiming it. Accordingly, debtor argues that since no timely objections were made in this case the entire value of his interests in Piper and Lisa Square are exempt by operation of 11 U.S.C. § 522(0 regardless of the $1.00 valuation. Therefore, debtor argues that there is no “nonexempt” interest available for plaintiffs to purchase. Discussion and Conclusions of Law Section 522(Z) of the bankruptcy code states in pertinent part: The debtor shall file a list of property the debtor claims as exempt under subsection (b)" }, { "docid": "23294874", "title": "", "text": "the amount stated by debtor as the exempt value, $45,000.00, rather than the full value of the homestead. Id. at 1319 & n. 6. This Court acknowledges that Virginia courts generally construe the Virginia homestead statute liberally. However, the debtor’s schedules and documents define the exemption and its value. Because the debtors themselves have drafted these schedules and documents, the Court must construe any ambiguities therein against the debtors. Id. This Court finds that the meaning of Grablowsky’s and the Reavis’s Schedule C forms are plain: Grablowsky claimed as exempt only $1.00 worth of his interests in each of the Piper partnership and the Lisa Square partnership, while the Reavis’s claimed as exempt only $10.00 worth of their 35% interest in January 16th Associates. However, to the extent that Gra- blowsky’s and the Reavis’s Schedule C’s might suggest that they sought to exempt the entire value of their interests in these partnerships, this Court would construe any such ambiguity against the debtors as did the Ninth Circuit in Hyman. As such, whether one construes Grablowsky’s Schedule C as explicit or ambiguous, in neither case does it provide any basis for concluding that Grablowsky exempted more than $1.00 worth of his interests in the Piper partnership and the Lisa Square partnership, or that the Reavis’s exempted more than $10.00 worth of their interest in January 16th Associates. Debtors Grablowsky and Reavis offer an additional argument based on Taylor in support of their position. They contend that even if Taylor's holding does not compel this Court to conclude that their full interests in the partnerships are exempt, Taylor’s dicta supports that conclusion. Specifically, the debtors note that Taylor states: In this case ..., [the trustee] did not object to the claimed exemption. If [the trustee] did not know the value of the potential proceeds of the lawsuit, he could have sought a hearing on the issue, see Rule 4003(c), or he could have asked the bankruptcy court for an extension of time to object, see Rule 4003(b). Id. at -, 112 S.Ct. at 1648. Debtors interpret this as an indication of the" }, { "docid": "1147042", "title": "", "text": "judge’s ire had he objected to the $45,000 exemption to which the Hymans were clearly entitled. In re Hyman, 967 F.2d at 1319. The court in Hyman reached this conclusion even after considering the Supreme Court’s decision in Taylor. See In re Hyman, 967 F.2d at 1319 n. 6. Since the time to object to exemptions is relatively short the court concluded: [I]t is important that trustees and creditors be able to determine precisely whether a listed asset is validly exempt simply by reading a debtor’s schedules. Given that the debtor controls the schedules, we construe any ambiguity therein against him. In re Hyman, 967 F.2d at 1319 n. 6. In this case the debtor has attempted to exempt his partnership interests in Piper and Lisa Square pursuant to Virginia’s homestead exemption which allows a debt- or to exempt real or personal property from creditors up to $5,000.00 in value. See Va.Code Ann. § 34-4 (Michie 1990). However, by listing the value of his interests as $1.00 the debtor has at the least created an ambiguity which should be construed against him. Accordingly, I conclude that $1.00 of the debtor’s partnership interests in Piper and Lisa Square have been exempted. So long as the debtor’s $1.00 exemption is protected, I find cause to lift the automatic stay for the trustee to sell and the plaintiff to purchase the debtor’s partnership , interest in Piper and Lisa Square pursuant to the respective partnership agreements. A separate order will be entered. . Debtor’s schedule B lists the following: Lisa Square Assoc., L.P. Owner: Husband Debtors’ interest: 1.00 Total debt on property: 0.00 Possession: In debtor’s possession. Bernie J. Grablowsky 2697 International Pkwy Virginia Beach, VA 23452 (Debtor Schedule B, p. 6). Partnership Interest in Piper Apt. Assoc., L.P. Owner: Husband Debtors’ interest: 1.00 Total debt on property: 0.00 Possession: In debtor’s possession. Bernie J. Grablowsky 2697 International Pkwy Virginia Beach, VA 23452 (Debtor Schedule B, p. 7). . Debtor's schedule C lists the following: Lisa Square Assoc., L.P. Debtors’ interest: 1.00 Value exempt: 1.00 Law: Code Section 34-4 (Debtor Schedule C, p." }, { "docid": "1147044", "title": "", "text": "3) (emphasis added). Partnership Interest in Piper Apt. Assoc., L.P. Debtors’ interest: 1.00 Value exempt: 1.00 Law: Code Section 34-4 (Debtor Schedule C, p. 4) (emphasis added). . Virginia Code § 50-73.28 states in pertinent part: [A] person ceases to be a general partner of a limited partnership upon the happening of any of the following events: ... 4_the general partner ... (ii) files a voluntary petition in bankruptcy; Va.Code Ann. § 50-73.28 (Michie 1992). . Countless bankruptcy petitions filed in Virginia have claimed homestead exemptions in nominal amounts as was done fay debtor here. This practice has usually been followed where a debtor holds an encumbered asset in which there may or may not be any significant equity for the bankruptcy estate. The reason for this is obvious. Since the present Virginia law allows but a maximum of $5,000.00 in total value for homestead exemption ($10,000.00 for husband and wife in a joint case), a debtor will not wish to use more of the exemption than is necessary. By claiming a nominal exemption, the debtor thus preserves the exemption amount until there is a determination of equity. Often, in chapter 7 cases, the case trustee will abandon the property. However, if the trustee determines there is sufficient equity and intends to sell the asset, the debtor may be in a position to amend upwards the homestead exemption and to that extent protect his or her equity in the asset. Customarily, bankruptcy trustees have not filed objections to a debtor’s claim of a nominal value homestead exemption, notwithstanding the equity in the asset might be significant. The issue of the amount of exemption may be resolved if and when the debtor seeks to increase the exemption. The court believes this practice has worked well in Virginia, and bankruptcy trustees have been spared the filing of numerous unnecessary objections to exemptions. . However, if the debtor amends the schedules to include additional value for his interests in the two partnerships the 30-day window in which a party in interest may object provided for in Rule 4003(b) starts anew. See Bankruptcy Rule" }, { "docid": "23294882", "title": "", "text": "the exemption of which are subject to monetary limitation. Va.Code Ann. §§ 34-26, 34-27, 34-28.1 (Michie 1990). . It remains unclear whether the Court in Taylor intended to bar a trustee from objecting to the value of a debtor’s exemption beyond the thirty days provided by Rule 4003(b), or whether the trustee merely is barred from objecting to the debtor’s entitlement to the objection, regardless of its value. The Supreme Court noted that the debtor in Taylor might have been entitled to exempt a portion of the lawsuit, thereby suggesting that the debtor’s objection (which the Court barred) was to the value of the exemption above that portion allowed under state law. — U.S. at-, 112 S.Ct. at 1648. However, the Court also indicated that the trustee’s challenge was to the validity of the exemption. Id. This would not bar a trustee from objecting to a debtor’s attempt to exempt the full value of her interest after listing only a specific nominal value for the exemption in her schedules. This Court reads Taylor to bar the trustee from objecting beyond thirty days to the validity of an exemption which the debtor indisputably claimed, but not to prevent the trustee from challenging the debtor’s full exemption of an interest listed in her schedules as having a nominal value. . In addition to the issue discussed above, Gra-blowsky challenges the bankruptcy court’s conclusion that good cause existed for granting the Ainslies’ motion for relief from stay. Grablow-sky asserts only one argument on the good cause issue: he claims, that if the bankruptcy court erred in holding that he had exempted only $1.00 worth of his interests in Piper and Lisa Square, then good cause would not exist for lifting the stay because no nonexempt interest in the two partnerships would exist for the trustee to sell to the Ainslies. This court has concluded, however, that the bankruptcy court did not err in holding that Grablowsky exempted only $1.00 worth of his interests in Piper and Lisa Square. Therefore, this court rejects Gra-blowsky’s challenge to the bankruptcy court’s finding of good cause to" }, { "docid": "1147043", "title": "", "text": "ambiguity which should be construed against him. Accordingly, I conclude that $1.00 of the debtor’s partnership interests in Piper and Lisa Square have been exempted. So long as the debtor’s $1.00 exemption is protected, I find cause to lift the automatic stay for the trustee to sell and the plaintiff to purchase the debtor’s partnership , interest in Piper and Lisa Square pursuant to the respective partnership agreements. A separate order will be entered. . Debtor’s schedule B lists the following: Lisa Square Assoc., L.P. Owner: Husband Debtors’ interest: 1.00 Total debt on property: 0.00 Possession: In debtor’s possession. Bernie J. Grablowsky 2697 International Pkwy Virginia Beach, VA 23452 (Debtor Schedule B, p. 6). Partnership Interest in Piper Apt. Assoc., L.P. Owner: Husband Debtors’ interest: 1.00 Total debt on property: 0.00 Possession: In debtor’s possession. Bernie J. Grablowsky 2697 International Pkwy Virginia Beach, VA 23452 (Debtor Schedule B, p. 7). . Debtor's schedule C lists the following: Lisa Square Assoc., L.P. Debtors’ interest: 1.00 Value exempt: 1.00 Law: Code Section 34-4 (Debtor Schedule C, p. 3) (emphasis added). Partnership Interest in Piper Apt. Assoc., L.P. Debtors’ interest: 1.00 Value exempt: 1.00 Law: Code Section 34-4 (Debtor Schedule C, p. 4) (emphasis added). . Virginia Code § 50-73.28 states in pertinent part: [A] person ceases to be a general partner of a limited partnership upon the happening of any of the following events: ... 4_the general partner ... (ii) files a voluntary petition in bankruptcy; Va.Code Ann. § 50-73.28 (Michie 1992). . Countless bankruptcy petitions filed in Virginia have claimed homestead exemptions in nominal amounts as was done fay debtor here. This practice has usually been followed where a debtor holds an encumbered asset in which there may or may not be any significant equity for the bankruptcy estate. The reason for this is obvious. Since the present Virginia law allows but a maximum of $5,000.00 in total value for homestead exemption ($10,000.00 for husband and wife in a joint case), a debtor will not wish to use more of the exemption than is necessary. By claiming a nominal exemption, the" }, { "docid": "23294883", "title": "", "text": "the trustee from objecting beyond thirty days to the validity of an exemption which the debtor indisputably claimed, but not to prevent the trustee from challenging the debtor’s full exemption of an interest listed in her schedules as having a nominal value. . In addition to the issue discussed above, Gra-blowsky challenges the bankruptcy court’s conclusion that good cause existed for granting the Ainslies’ motion for relief from stay. Grablow-sky asserts only one argument on the good cause issue: he claims, that if the bankruptcy court erred in holding that he had exempted only $1.00 worth of his interests in Piper and Lisa Square, then good cause would not exist for lifting the stay because no nonexempt interest in the two partnerships would exist for the trustee to sell to the Ainslies. This court has concluded, however, that the bankruptcy court did not err in holding that Grablowsky exempted only $1.00 worth of his interests in Piper and Lisa Square. Therefore, this court rejects Gra-blowsky’s challenge to the bankruptcy court’s finding of good cause to lift the stay." }, { "docid": "23294865", "title": "", "text": "value at what level up to the $5,000/$10, 000 statutory maximum and amending the schedule accordingly is appropriate. But using nominal valuation in an attempt to completely exempt an asset or group of assets worth well over the statutory maximum is inappropriate. See id. Debtors Grablowsky and Reavis clearly sought to maximize their homestead exemption by affixing nominal values to the interests claimed exempt in their bankruptcy petitions. The Court will not now allow debtors to exempt their entire interests in the property at issue in excess of the $5,000/$10,000 maximum allowance. In his Schedule C, Grablowsky listed his interests in the Piper and Lisa Square partnerships as worth $1.00 each and claimed them exempt in the amount of $1.00 each. Gra-blowsky stated no percentile of ownership in these partnerships, nor did he in any way suggest that he sought to exempt more of his interests in the Piper partnership or the Lisa Square partnership than the $1.00 listed on his Schedule C. Reference to the partnership agreement for Piper supports the conclusion that debtor designedly affixed a nominal value to these interests. Paragraph 8.2 of Article VIII of the Piper partnership agreement states: The General Partners ... shall be entitled to receive a Partnership management fee in the amount of $40,000 per year commencing January 1, 1989 and ending December 31, 2003.... In the event the Partnership sells the Property before December 31, 2003, the General Partners ... shall be entitled to receive the Partnership management fees they would have received between the date the Property is sold and December 31, 2003, discounted at an eleven percent (11%) annual rate. If Grablowsky had read the partnership agreement — as the Court assumes he must have done — it would have been apparent to him that his interest as a general partner constitutes a valuable asset clearly worth more than $1.00. Nevertheless, Grablow-sky chose to claim on his Schedule C an exemption of only $1.00 worth of his interest in Piper. This Court therefore concludes that Grablowsky’s Schedule C entitles him to only $1.00 worth of his interests in Piper" }, { "docid": "23294879", "title": "", "text": "trustees’ motions be equated with challenges to debtors’ valuation of their interests in the partnerships at issue, such challenges are not foreclosed by trustees’ failure to object pursuant to 11 U.S.C. § 522(l) and Rule 4003(b). Id. Thus, this Court finds no error in the bankruptcy court’s ruling that Grablowsky exempted only $1.00 worth of his interests in Piper and Lisa Square. Concomitantly, this Court finds that the bankruptcy court erred in ruling that debtors Reavis exempted more than $10.00 value of their interest in January 16th Associates. II. CONCLUSION Accordingly, the ruling of the bankruptcy court in Ainslie v. Grablowsky, 2:93cv125, is AFFIRMED and the ruling of the bankruptcy court in Addison v. Reavis, 2:93cvl66, is REVERSED, and both cases are REMANDED to the bankruptcy court for any further proceedings necessary therein. The clerk is DIRECTED to send a copy of this Order to counsel of record. IT IS SO ORDERED. . Oral argument is unnecessary because \"the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument.\" Fed.R.Bankr.P. 8012. . The Virginia homestead exemption provides, in part, that \"[ejvery householder shall be entitled ... to hold exempt from creditor process arising out of a debt, real and personal property, or either, to be selected by the householder, including money and debts due the householder not exceeding $5,000 in value.” Va.Code Ann. § 34-4 (Michie 1990). . Debtor invokes the Virginia homestead exemption as authority for his claimed exemption of interests in Piper and Lisa Square. . The record also contains a copy of the Homestead Deed filed by Lewis and Carol Reavis in the Circuit Court for the City of Virginia Beach. In relevant part, the Homestead Deed claims an exemption in a \"35% partnership interest in January 16th Assoc.” valued at $10.00. . Waltrip — decided by Judge Walter E. Hoffman, who, before becoming a District Judge in 1953, served as a bankruptcy referee, and who still sits in this Court — sets forth the established interpretation of the Virginia homestead exemption in" }, { "docid": "23294870", "title": "", "text": "[Davis] v. TWA’ and ‘Claim for lost wages’ and listed its value as ‘unknown.’ ” — U.S. at-, 112 S.Ct. at 1646. Though he knew debtor intended to exempt the entire value of the lawsuit, the trustee believed that the suit lacked substantial value and specifically declined to pursue it. The Supreme Court concluded that the debtor had claimed her full recovery from TWA as exempt, but noted that all parties agreed that neither state nor federal law permitted an exemption of any significant part of that recovery. Id. at -, 112 S.Ct. at 1647. However, because no objection to debtor’s claimed exemption had been filed within the thirty day period established by Rule 4003(b), the Supreme Court held that the validity of debtor’s exemption could not be challenged. Id. at -, 112 S.Ct. at 1648. In so doing, the Supreme Court literally construed the mandate of 11 U.S.C. § 522(Z) that in the ab sence of a timely objection “the property claimed as exempt ... is exempt.” Id. This Court is compelled to follow Taylor. However, in the present cases, the question remains: What property did the debtors claim as exempt? Unlike the debt- or in Taylor, debtors Grablowsky and Reavis did not claim as exempt the full value of the property at issue. The Taylor debtor clearly claimed as exempt the entire value of the proceeds of a lawsuit whose value she conceded was unknown. Id. at -, 112 S.Ct. at 1646. Grablowsky’s Schedule C, however, identified the property he claimed as exempt as interests in the Piper partnership and the Lisa Square partnership which were worth $1.00 each and were to be exempt in the amount of $1.00. In neither the Piper partnership nor the Lisa Square partnership did Grablowsky show any percentile of ownership shown; instead, the Schedule indicated only an interest valued at $1.00. The Reavis’s Schedule C listed as exempt a 35% interest in January 16th Associates with a value of $10.00 and exempt to the value of $10.00. While the Reavis’s indicated a percentile of ownership, they, like Grablowsky, did not suggest in" }, { "docid": "9900102", "title": "", "text": "of the lawsuit, the debtor was entitled to all of the proceeds. The Green court put little, if any, significance on the debtor’s reported value of the lawsuit as $1.00 because, unlike the situation in the present case, the trustee in Green conceded that he understood the $1.00 value listed represented a contingent value. Green at 1100. In In re DeSoto, 181 B.R. 704 (Bankr.D.Conn.1995), the court addressed facts similar to those in Green, reaching a contrary conclusion. In DeSoto, debtors claimed exempt their interest in stock, which they valued at $1.00. The trustee later arranged to sell the stock for $10,000. The debtors, relying on Taylor, asserted that because they exempted the entire value of the stock, i.e. $1.00, the title to the stock revested in them and any later increase in value belonged to them. The court noted that Taylor, where the debtor listed the value of the exemption as “unknown,” the trustee was fairly and reasonably on notice that his failure to object could deprive the estate of the property’s value in an unlimited amount. However, in DeSoto, the debtors valued their claim of exemption. Therefore, the trustee had a reasonable expectation that the exemption claim could not deprive the estate of more than the amount claimed as exempt. DeSoto, 181 B.R. at 707. We agree with the reasoning and result in DeSoto. Debtors claimed a $7,500 exemption: The Trustee had no reason to object and no cause to believe that the claim of exemption would deprive the estate of any more than the $7,500 claimed. See Mercer v. Monzack, 53 F.3d 1 (1st Cir.1995); Ainslie v. Grablowsky (In re Grablowsky), 32 F.3d 562 (4th Cir.1994) (unpublished opinion, text in Westlaw); Addison v. Reavis, 158 B.R. 53 (E.D.Va. 1993); In re Soost, 262 B.R. 68 (8th Cir. BAP 2001); In re Shelby, 232 B.R. 746 (Bankr.W.D.Mo.1999); In re Bregni, 215 B.R. 850 (Bankr.E.D.Mich.1997). Claiming an exemption of a specific dollar value does not render the PI Case immune from process by the Trustee as an asset of the estate even though the Trustee has not objected to" }, { "docid": "23294864", "title": "", "text": "equity in the asset might be significant. The issue of the amount of the exemption may be resolved if and when the debtor seeks to increase the exemption. The court believes this practice has worked well in Virginia, and bankruptcy trustees have been spared the filing of numerous unnecessary objections to exemptions. In re Grablowsky, 149 B.R. 402, 405 n. 4 (Bankr.E.D.Va.1993) (emphasis added). Since there is such liberality under Virginia law in allowing amendment of the homestead deed to raise the value of an item claimed, In re Waltrip, 260 F.Supp. at 451, it is easily understandable how this Virginia practice evolved. However, Virginia courts should not allow debtors to employ this practice in order to obtain a total homestead exemption in excess of the maximum allowed under state law, as this “would be but an invitation to the perpetration of the grossest frauds upon the rights of creditors.” Oppenheimer, 76 Va. at 223. In other words, using nominal valuation of assets in the original Schedule C and then later deciding which assets to value at what level up to the $5,000/$10, 000 statutory maximum and amending the schedule accordingly is appropriate. But using nominal valuation in an attempt to completely exempt an asset or group of assets worth well over the statutory maximum is inappropriate. See id. Debtors Grablowsky and Reavis clearly sought to maximize their homestead exemption by affixing nominal values to the interests claimed exempt in their bankruptcy petitions. The Court will not now allow debtors to exempt their entire interests in the property at issue in excess of the $5,000/$10,000 maximum allowance. In his Schedule C, Grablowsky listed his interests in the Piper and Lisa Square partnerships as worth $1.00 each and claimed them exempt in the amount of $1.00 each. Gra-blowsky stated no percentile of ownership in these partnerships, nor did he in any way suggest that he sought to exempt more of his interests in the Piper partnership or the Lisa Square partnership than the $1.00 listed on his Schedule C. Reference to the partnership agreement for Piper supports the conclusion that debtor" }, { "docid": "23294871", "title": "", "text": "Taylor. However, in the present cases, the question remains: What property did the debtors claim as exempt? Unlike the debt- or in Taylor, debtors Grablowsky and Reavis did not claim as exempt the full value of the property at issue. The Taylor debtor clearly claimed as exempt the entire value of the proceeds of a lawsuit whose value she conceded was unknown. Id. at -, 112 S.Ct. at 1646. Grablowsky’s Schedule C, however, identified the property he claimed as exempt as interests in the Piper partnership and the Lisa Square partnership which were worth $1.00 each and were to be exempt in the amount of $1.00. In neither the Piper partnership nor the Lisa Square partnership did Grablowsky show any percentile of ownership shown; instead, the Schedule indicated only an interest valued at $1.00. The Reavis’s Schedule C listed as exempt a 35% interest in January 16th Associates with a value of $10.00 and exempt to the value of $10.00. While the Reavis’s indicated a percentile of ownership, they, like Grablowsky, did not suggest in any way that they sought to exempt more of their interests in the partnerships in issue than the nominal value listed on their Schedule C. The Court concludes that Grablowsky’s Schedule C explicitly claims as exempt property only $1.00 worth of his interests in the Piper and Lisa Square partnerships, and the Reavis’s Schedule C explicitly claims as exempt property only $10.00 worth of their interest in January 16th Associates, provided that the debtors do not choose to adjust these amounts upward within the statutory maximum value. See In re Shoemaker, 155 B.R. 552, 555 (Bankr.N.D.Ala.1992) (holding that debtor’s attachment of $1,000 to the amount of a lawsuit to be exempt limited debtor’s exemption of the lawsuit to $1,000, notwithstanding trustee’s failure to object to the exemption). See also Bronner v. Gill, 135 B.R. 645, 647-48 (Bankr. 9th Cir.1992) (“By not objecting to the exemption, the trustee merely recognized that Debtors had a valid statutory basis for the claim. The claim, however, remained subject to the [statutory] ... limit.”) At best, debtors Grablowsky and Reavis" }, { "docid": "1147033", "title": "", "text": "MEMORANDUM OPINION DOUGLAS 0. TICE, Jr., Bankruptcy Judge. These contested matters raise the issue of whether a chapter 7 debtor’s claims of exemption for assets in the amount of $1.00 each, to which no timely objection is taken, constitutes a complete exemption of the assets despite their actual value in excess of $1.00. The issue must be resolved by the court in the context of plaintiffs’ motions for relief from stay to allow the plaintiffs to purchase debtor’s partnership interests in two partnerships from the chapter 7 trustee. In his bankruptcy petition debtor claimed his partnership interests exempt at a value of $1.00 each. For the reasons stated in this memorandum opinion the court finds that debtor is entitled to exemption only to the extent of the $1.00 claimed. The plaintiffs’ motions will therefore be granted subject to debt- or’s $1.00 exemption as to each of his partnership interests. Facts The parties have stipulated to most of the relevant facts. On July 9, 1992, debtor filed his chapter 7 petition, and Jack D. Maness has been appointed chapter 7 trustee. At the time of filing the petition, the debtor was a general partner in Piper Apartments Associates, L.P., a Virginia Limited Partnership (“Piper”), and a limited partner in Lisa Square Associates, L.P., a Virginia Limited Partnership (“Lisa Square”). Debtor’s interest in Piper and Lisa Square is disclosed on debtor’s list of personal property (bankruptcy schedule B) and each is valued at $1.00. Debtor’s interest in Piper and Lisa Square is also listed as property claimed as exempt (bankruptcy schedule C) and each is valued at $1.00. No party has filed an objection to the exemptions listed on the debtor’s schedule within the 30-day window provided by Bankruptcy Rule 4003(b). The debtor’s interests as a general partner in Piper and as a limited partner in Lisa Square are governed by respective partnership agreements. Article XIV of the Piper partnership agreement states that: A Person shall cease to be a General Partner upon ... any of the other events set forth in Section 50-73.28 of the Act. Upon the occurrence of any" }, { "docid": "23294861", "title": "", "text": "(and married household debtors filing jointly to exempt up to $10,000) worth of property from the bankruptcy estate, whether that property be of realty or per sonalty. Va.Code Ann. §§ 34-4, 34-13 (Mi-chie 1990). Both debtors in the present cases claimed homestead exemptions under the Virginia law. Schedule C to Grablowsky’s bankruptcy petition contains his list of claimed exemptions. In addition to twenty-nine other interests claimed under the Virginia homestead exemption, Grablowsky’s Schedule C makes reference to debtor’s interests in the Piper and Lisa Square partnerships by stating: Lisa Square Assoc., L.P. Debtors' interest: 1.00 Value exempt: 1.00 Law: Code Section 34-4 Partnership Interest in Piper Apt. Assoc., L.P. Debtors’ interest: 1.00 Value exempt: 1.00 Law: Code Section 34-4 The Schedule C filed by Lewis and Carol Reavis similarly contained thirty homestead exemptions, including an exemption of an interest in January 16th Associates, as follows: 35% partner — January 16th Associates Debtors’ interest: 10.00 Value exempt: 10.00 Law: Code of Virginia, Section 34-4 Virginia law governs the interpretation of the homestead exemption. See Dominion Bank of the Cumberlands v. Nuckolls, 780 F.2d 408, 416-17 (4th Cir.1984) (citing Zimmerman v. Morgan, 689 F.2d 471, 472 (4th Cir.1982)). Virginia law does not confine the debtor to the specific amount listed for a particular exemption in his homestead deed; the debtor may amend upward the valuation stated on the schedule if and when the bankruptcy court determines that a higher value is more appropriate for that item. In re Waltrip, 260 F.Supp. 448, 451 (E.D.Va.1966). However, the debtor may not adjust the value of an exemption upward if doing so will elevate the total sum value of all the debtor’s homestead exemptions above the $5,000/ $10,000 maximum allowed under the statute. See In re Waltrip, 260 F.Supp. at 451. See also Oppenheimer v. Howell, 76 Va. 218, 222 (1882). Thus, under Sections 34-4 and 34-13, the exemptions are claimed primarily according to the specified dollar value of the property, not by virtue of the type of property. By comparison, the many exemptions enumerated in Sections 34-26, 34-27 and 34-28.1 of the Code of" }, { "docid": "23294866", "title": "", "text": "designedly affixed a nominal value to these interests. Paragraph 8.2 of Article VIII of the Piper partnership agreement states: The General Partners ... shall be entitled to receive a Partnership management fee in the amount of $40,000 per year commencing January 1, 1989 and ending December 31, 2003.... In the event the Partnership sells the Property before December 31, 2003, the General Partners ... shall be entitled to receive the Partnership management fees they would have received between the date the Property is sold and December 31, 2003, discounted at an eleven percent (11%) annual rate. If Grablowsky had read the partnership agreement — as the Court assumes he must have done — it would have been apparent to him that his interest as a general partner constitutes a valuable asset clearly worth more than $1.00. Nevertheless, Grablow-sky chose to claim on his Schedule C an exemption of only $1.00 worth of his interest in Piper. This Court therefore concludes that Grablowsky’s Schedule C entitles him to only $1.00 worth of his interests in Piper and Lisa Square, provided that Grablowsky does not amend the value stated for these interests, within the $5,000 total homestead allowance. To accept debtor’s argument that he has exempted the entire value of his interest in the partnerships would be to condone an abuse of the system under which debtor has already secured an important benefit — the ability to claim an exemption for an interest in property while designating only a nominal exemption value so as not to “use more of the exemption than is necessary.” In re Grablowsky, 149 B.R. at 405 n. 4. The relevant Schedule C entries of Lewis and Carol Reavis were identical in all material respects to those of Grablowsky, except that the Reavis’s Schedule C identified the exemption for debtors as a 35% interest in. January 16th Associates valued at $10.00. However, the debtors provided no indication that they claimed as exempt property anything other than $10.00 worth of their interest in the partnership. Debtors’ valuation is clearly nominal in comparison to the $2,500 for which the trustee" }, { "docid": "23294860", "title": "", "text": "of the trustee’s failure to object to the exemption. Thus, Grablowsky is entitled an exemption of only $1.00 value of his interests in each of the Piper and Lisa Square partnerships, and Lewis and Carol Reavis are entitled to an exemption of only $10.00 value of their interest in January 16th Associates. I. ANALYSIS A. The Virginia Homestead Exemption Property of the bankruptcy estate includes “all legal or equitable interests of the debtor at the commencement of the case.” 11 U.S.C. § 541(a)(1) (Law. Co-op. 1986). The Bankruptcy Code allows debtors to exempt from distribution by the trustee certain interests in property. 11 U.S.C. § 522 (Law Co-op.1986). Exercising its authority under Section 522(b)(2)(A) of the Code to “opt out” of the exemptions provided by the Code, Virginia entitles its debtors to claim only those exemptions enumerated under Virginia law. See 11 U.S.C. § 522(b)(2)(A) and Va.Code Ann. § 34-3.1 (Michie 1990). One of the several exemptions provided under Virginia law, the Virginia homestead exemption, entitles an individual householder debtor to exempt up to $5,000 (and married household debtors filing jointly to exempt up to $10,000) worth of property from the bankruptcy estate, whether that property be of realty or per sonalty. Va.Code Ann. §§ 34-4, 34-13 (Mi-chie 1990). Both debtors in the present cases claimed homestead exemptions under the Virginia law. Schedule C to Grablowsky’s bankruptcy petition contains his list of claimed exemptions. In addition to twenty-nine other interests claimed under the Virginia homestead exemption, Grablowsky’s Schedule C makes reference to debtor’s interests in the Piper and Lisa Square partnerships by stating: Lisa Square Assoc., L.P. Debtors' interest: 1.00 Value exempt: 1.00 Law: Code Section 34-4 Partnership Interest in Piper Apt. Assoc., L.P. Debtors’ interest: 1.00 Value exempt: 1.00 Law: Code Section 34-4 The Schedule C filed by Lewis and Carol Reavis similarly contained thirty homestead exemptions, including an exemption of an interest in January 16th Associates, as follows: 35% partner — January 16th Associates Debtors’ interest: 10.00 Value exempt: 10.00 Law: Code of Virginia, Section 34-4 Virginia law governs the interpretation of the homestead exemption. See Dominion Bank" }, { "docid": "23294878", "title": "", "text": "however. Some courts have concluded that no challenge to the value of the property may be asserted after the period for objections to a debtor’s exemptions has expired. See In re Okoinyan, 135 B.R. 691 (Bankr.S.D.Fla.1991); cf. In re Wiesner, 39 B.R. 963, 965 (Bankr.W.D.Wis.1984) (holding that “a collateral attack on exemptions by means of an application for appraisal outside the [court ordered fifteen day] period for objections is barred”) (citing In re Walsh, 5 B.R. 239 (Bankr.D.D.C.1980)). This Court finds more persuasive, however, those decisions which have quite properly recognized: the distinction between an objection to the existence of an exemption and an objection to the valuation of the property in which debtors claim an exemption. Only the former objection must be made within the Bankruptcy Rule 4003(b) 30-day period following the meeting of creditors. In re Hyman, 123 B.R. 342, 348 (Bankr. 9th Cir.1991), aff'd, 967 F.2d 1316 (9th Cir.1992); see also In re Allen, 44 B.R. 38, 40-41 (Bankr.D.N.M.1984) (citing In re Fitzgerald, 729 F.2d 306, 308 (4th Cir.1984)). Thus, should the trustees’ motions be equated with challenges to debtors’ valuation of their interests in the partnerships at issue, such challenges are not foreclosed by trustees’ failure to object pursuant to 11 U.S.C. § 522(l) and Rule 4003(b). Id. Thus, this Court finds no error in the bankruptcy court’s ruling that Grablowsky exempted only $1.00 worth of his interests in Piper and Lisa Square. Concomitantly, this Court finds that the bankruptcy court erred in ruling that debtors Reavis exempted more than $10.00 value of their interest in January 16th Associates. II. CONCLUSION Accordingly, the ruling of the bankruptcy court in Ainslie v. Grablowsky, 2:93cv125, is AFFIRMED and the ruling of the bankruptcy court in Addison v. Reavis, 2:93cvl66, is REVERSED, and both cases are REMANDED to the bankruptcy court for any further proceedings necessary therein. The clerk is DIRECTED to send a copy of this Order to counsel of record. IT IS SO ORDERED. . Oral argument is unnecessary because \"the facts and legal arguments are adequately presented in the briefs and record and the decisional process" }, { "docid": "1147034", "title": "", "text": "been appointed chapter 7 trustee. At the time of filing the petition, the debtor was a general partner in Piper Apartments Associates, L.P., a Virginia Limited Partnership (“Piper”), and a limited partner in Lisa Square Associates, L.P., a Virginia Limited Partnership (“Lisa Square”). Debtor’s interest in Piper and Lisa Square is disclosed on debtor’s list of personal property (bankruptcy schedule B) and each is valued at $1.00. Debtor’s interest in Piper and Lisa Square is also listed as property claimed as exempt (bankruptcy schedule C) and each is valued at $1.00. No party has filed an objection to the exemptions listed on the debtor’s schedule within the 30-day window provided by Bankruptcy Rule 4003(b). The debtor’s interests as a general partner in Piper and as a limited partner in Lisa Square are governed by respective partnership agreements. Article XIV of the Piper partnership agreement states that: A Person shall cease to be a General Partner upon ... any of the other events set forth in Section 50-73.28 of the Act. Upon the occurrence of any such event, ... the remaining General Partners shall have the option to purchase the interest of the terminated General Partner, pro rata. (Piper Partnership Agreement, p. 29). Although the Lisa Square partnership agreement does not contain specific buyout provisions, paragraph 12(c) states that: In the event of the bankruptcy of any Limited Partner, such Limited Partner’s interest in the partnership shall pass, subject to all the provisions of this Agreement, to the Trustee in Bankruptcy or other legal representative of such bankrupt Limited Partner, who may thereafter request to become a Substituted Limited Partner pursuant to the terms of this Agreement. (Lisa Square Partnership Agreement, p. 3). Pursuant to the partnership agreements plaintiff’s seek relief from stay to buy from the trustee any available “non-exempt” interest debtor may have in Piper and Lisa Square. Therefore, the narrow legal issue before the court is whether the amount exempted by the debtor is $1.00 of his interests in Piper and Lisa Square or the entire value of interests in Piper and Lisa Square. Position of Parties PLAINTIFFS." }, { "docid": "23294875", "title": "", "text": "Schedule C as explicit or ambiguous, in neither case does it provide any basis for concluding that Grablowsky exempted more than $1.00 worth of his interests in the Piper partnership and the Lisa Square partnership, or that the Reavis’s exempted more than $10.00 worth of their interest in January 16th Associates. Debtors Grablowsky and Reavis offer an additional argument based on Taylor in support of their position. They contend that even if Taylor's holding does not compel this Court to conclude that their full interests in the partnerships are exempt, Taylor’s dicta supports that conclusion. Specifically, the debtors note that Taylor states: In this case ..., [the trustee] did not object to the claimed exemption. If [the trustee] did not know the value of the potential proceeds of the lawsuit, he could have sought a hearing on the issue, see Rule 4003(c), or he could have asked the bankruptcy court for an extension of time to object, see Rule 4003(b). Id. at -, 112 S.Ct. at 1648. Debtors interpret this as an indication of the Supreme Court’s determination that in the absence of a timely objection within Rule 4003(b)’s thirty day period, the value attached by debtor to the property — as opposed to the value of the exemption stated in the schedule — becomes conclusive on all parties. As a result, given the lack of a timely objection, the Court and parties supposedly must accept Grablowsky’s valuation of his partnership interests as worth $1.00 each and the Reavis’s valuation of their interest as worth $10.00. Debtors conclude that by claiming an exempt value of $1.00 and $10.00 each in partnership interests conclusively established to be worth $1.00 and $10.00 each, respectively, they have exempted their full interests in these partnerships. Debtors read far more into this passage from Taylor than the language will bear. The Supreme Court’s language neither states nor implies that the debtor’s valuation of the property at issue becomes conclusive when there has been no objection pursuant to Code § 522(0 and Rule 4003(b). This language was written in the context of a debtor who explicitly" } ]

[ { "docid": "21541799", "title": "", "text": "family’s wish to “continue his claim”. The Court issued an order granting a stay of this case until October 10, 1995. Subsequently, in October 1995, the appellant’s counsel filed a motion to substitute the surviving spouse of the appellant as a party “to complete the appeal” and also filed an opposition to the Secretary’s motion to dismiss. For the reasons that follow, the Court will grant the Secretary’s motion and dismiss the appeal as moot. In Landicho, the Court held that it lacked jurisdiction to allow the substitution of a party for a veteran who died while his or her appeal of a BVA-disallowed claim for disability compensation under chapter 11 of title 38, U.S.Code, was pending here on appeal, and dismissed the appeal because it had become moot by virtue of the death of the veteran appellant. Landicho, 7 Vet.App. at 44, 54. The Court held that the appropriate remedy under the circumstances is to vacate the BVA decision from which the appeal was taken (and cause the underlying regional office (RO) decision(s) to be vacated as well) and to dismiss the appeal. Landicho, 7 Vet. App. at 54. This was done to ensure that the BVA decision and the underlying RO decision^) would have no preclusive effect in the adjudication of any accrued-benefits claims derived from the veteran’s entitlement. Ibid.; but cf. Yoma v. Brown, 8 Vet.App. 298 (1995) (per curiam order) (applying Landi-cho, dismissing appeal, and vacating Board decision but not directing that Board vacate RO decision). In opposing the Secretary’s motion to dismiss, the appellant’s counsel contends, relying on Kamos v. Derwinski, 1 Vet.App. 308, 312-13 (1991), that the Court’s decision in Landicho and the amended Rule 43 of the Court’s Rules of Practice and Procedure do not apply to this appeal because the appeal was pending at the Court at the time that decision was issued. In Kamas, the Court held that “where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should ..." } ]

[ { "docid": "15818848", "title": "", "text": "see Sagnella, supra, prior to the appellant’s death, the Court cannot conclude that any of those “unusual circumstances” are present in the instant case with respect to claim 1. Accordingly, the Secretary’s motion, with respect to claim 1, will be denied. On the other hand, with respect to claims 2 and 3, the Court notes that the appellant had died before this Court’s judgment became final. In this regard, the Court held in Landicho, 7 Vet .App at 46-49, that substitution by a party claiming accrued benefits under 38 U.S.C. § 5121(a) is not permissible in this Court where the appellant is a veteran who dies while the denial by the Board of the veter an’s claim for disability compensation under chapter 11 of title 38, U.S.Code, is pending here on appeal. See also Zevalkink, supra (expressly agreeing with this Court’s Landicho holding). This Court held in Landicho that the appropriate remedy under such circumstances is to vacate the Board decision from which the appeal was taken and to dismiss the appeal. Landicho, 7 Vet.App. at 54. This ensures that the Board decision and the underlying VA regional office (RO) decision^) will have no preclusive effect in the adjudication of any accrued-benefits claims derived from the veteran’s entitlements. It also nullifies the previous merits adjudication by the RO because that decision was subsumed in the Board decision. See Yoma v. Brown, 8 Vet.App. 298 (1995) (per curiam order) (relying on Robinette v. Brown, 8 Vet.App. 69, 80 (1995)); see also Hudgins v. Brown, 8 Vet.App. 365, 368 (1995) (per curiam order). Accordingly, to the extent that the BVA’s decision with respect to claims 2 and 3 was appealed by the appellant, the Secretary’s motion will be granted. To the extent that the appellant’s widow is claiming entitlement to accrued benefits under 38 U.S.C. § 5121(a), the Court lacks jurisdiction over that claim because there is no final Board decision and no timely filed Notice of Disagreement (NOD) as to that claim. See Landicho, 7 Vet.App. at 47-48 (Court dismissed appeal where Board had not addressed accrued-benefits claims by appellants seeking" }, { "docid": "2701876", "title": "", "text": "ORDER PER CURIAM: On September 20, 1999, a majority of the Court, sitting en banc, issued an opinion in the instant case affirming the April 8, 1998, decision of the Board of Veterans’ Appeals (Board) that denied the appellant’s claim for service connection for residuals of a head injury with syncope and possible brain lesion. Kessel v. West, 13 Vet.App. 9 (1999). The Court’s judgment was entered on October 13, 1999. The appellant appealed to the United States Court of Appeals for the Federal Circuit (Federal Circuit). After submission of the appeal to the Federal Circuit, but before that court issued a decision, the appellant died. On August 14, 2000, the Federal Circuit issued an order dismissing the appeal and denying a motion for substitution of heirs in the pending appeal. Kessel v. Gober, No. 00-7011, 2000 WL 1145483 (Fed.Cir. Aug. 14, 2000). This Court held in Landicho v. Brown that when a veteran dies during the pen-dency of the appeal, the appropriate remedy is to vacate the Board decision from which the appeal was taken and to dismiss the appeal. 7 Vet.App. 42, 54 (1994); see also Morton v. Gober, 14 Vet.App. 174 (2000). Such action ensures that the Board decision and the underlying regional office (RO) decision(s) will have no preclu-sive effect in the adjudication of any accrued-benefits claims derived from the veteran’s entitlements. It also nullifies the previous merits adjudication by the RO because that decision was subsumed in the Board decision. See Yoma v. Brown, 8 Vet.App. 298 (1995) (relying on Robinette v. Brown, 8 Vet.App. 69, 80 (1995)); see also Hudgins v. Brown, 8 Vet.App. 365, 368 (1995) (per curiam order). Based upon the foregoing, sua sponte, it is ORDERED that the Court’s judgment in the instant ease is recalled and its September 20, 1999, opinion is withdrawn. It is further ORDERED that the April 8, 1998, decision of the Board is VACATED. It is further ORDERED that this appeal is DISMISSED for lack of jurisdiction." }, { "docid": "21541808", "title": "", "text": "his eligibility for parole and had subsequently obtained parole and then a complete release from supervision, “no longer has any present interest affected by that policy”. Weinstein, supra. It is unclear to the Court how the deceased appellant has a present interest in the adjudication of claims by other claimants for chapter 11 benefits. In view of the appellant’s death, there is no longer a present, live controversy before the Court. Because no decision by this Court could have an impact on the deceased appellant and the circumstances of this appeal do not fall within any well-recognized exception to the mootness doctrine, the Court will dismiss the appeal in accordance with Landicho for the reasons set forth above. On consideration of the foregoing, it is ORDERED that the September 10, 1993, BVA decision is VACATED. This decision of the Court vacating the BVA decision has the legal effect of nullifying the underlying merits adjudication by the RO because this decision was subsumed in the BVA decision which the Court is vacating. See Yoma, supra (relying on Robinette v. Brown, 8 Vet. App. 69, 80 (1995)). Consequently, under Landicho, supra, any accrued-benefits claim by a survivor will have the same character (original claim or claim to reopen) as the claim that the veteran was pursuing at the time of his or her death, and the adjudication of that accrued-benefits claim will not be affected by the BVA or RO decisions that are being nullified by the Court’s instant order vacating the BVA decision. It is further ORDERED that this appeal is DISMISSED for lack of jurisdiction." }, { "docid": "2728304", "title": "", "text": "to be of the same view. See Nolen v. Gober, 222 F.3d 1356, 1360 (Fed.Cir.1999) (“Absent a well[-]grounded claim, there is nothing further the [Department of Veterans Affairs] need or can do.” (emphasis added)). Moreover, there is more at stake than just the “public interest”; there are the interests of the heirs of Mr. Morton. Consistent with the “strongly and uniquely pro-claimant” character of veterans benefits statutes (Nolen, 222 F.3d at 1360 (quoting Hodge v. West, 155 F.3d 1356, 1362 (Fed.Cir.1998))), we held in Landicho v. Brown that when a veteran dies while an appeal of the denial by the Board of his or her claim for disability compensation is pending, the appropriate remedy is to vacate the Board decision from which the appeal was taken and to dismiss the appeal. 7 Vet.App. 42, 54 (1994); see also Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed.Cir.1996). Such action ensures that the Board decision and the underlying regional office (RO) decision(s) will have no preclusive effect in the adjudication of any future accrued-benefits claims derived from the veteran’s entitlements. It also nullifies the previous merits adjudication by the RO because that decision was subsumed in the Board decision. See Yoma v. Brown, 8 Vet.App. 298 (1995) (relying on Robinette v. Brown, 8 Vet.App. 69, 80 (1995)); see also Hudgins v. Brown, 8 Vet.App. 365, 368 (1995) (per curiam order). For these reasons, we conclude on remand that vacatur is appropriate under these circumstances. Accordingly, it is ORDERED that the Court’s August 5, 1999, judgment is recalled and the Court’s July 14, 1999, opinion is withdrawn. It is further ORDERED that the August 31, 1998, Board decision is VACATED. It is further ORDERED that this appeal is DISMISSED for lack of jurisdiction." }, { "docid": "23352192", "title": "", "text": "ORDER PER CURIAM. On August 10, 1995, the Secretary filed a motion to vacate the Board of Veterans’ Appeals (BVA) decision, dismiss the appeal, and to stay proceedings because the appellant, Domingo M. Yoma, died on July 5, 1995. On September 6, 1995, the appellant’s widow, Mrs. Virginia C. Yoma, filed a motion to continue proceedings in her husband’s appeal. The Court held in Landicho v. Brown, 7 Vet.App. 42, 44 (1994), that substitution is not permissible in this Court where the appellant is a veteran who dies while the denial by the BVA of the veteran’s claim for disability compensation under chapter 11 of title 38, U.S.Code, is pending here on appeal. Under such circumstances, the Court held that the appropriate remedy is to vacate the BVA decision from which the appeal was taken (and cause the underlying regional office (RO) decision to be vacated as well) and to dismiss the appeal. Id., 7 Vet.App. at 54. This is done to ensure that the BVA decision and the underlying RO decision will have no preclusive effect in the adjudication of any accrued-benefits claims derived from the veteran’s entitlements. Id. On consideration of the foregoing, it is ORDERED that the May 12, 1994, BVA decision is vacated. This decision of the Court vacating the BVA decision has the legal effect of nullifying the previous merits adjudication by the RO because this decision was subsumed in the BVA decision. Robinette v. Brown, 8 Vet.App. 69, 80 (1995). Consequently, any subsequent claim by a survivor will be subject to de novo adjudication of any survivor’s claims. It is further ORDERED that this appeal is DISMISSED." }, { "docid": "11249314", "title": "", "text": "this Court where the appellant is a veteran who dies while the denial by the Board of the veteran’s claim for disability compensation under chapter 11 of title 38, U.S.Code, is pending here on appeal. See Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed.Cir.1996) (expressly agreeing with this Court’s Landicho holding). The Court held that, under such circumstances, the appropriate remedy is to vacate the Board decision from which the appeal was taken and to dismiss the appeal. Landicho, 7 Vet.App. at 54. This ensures that the Board decision and the underlying regional office (RO) decision(s) will have no preclusive effect in the adjudication of any accrued-benefits claims derived from the veteran’s entitlements. It also nullifies the previous merits adjudication by the RO because that decision was subsumed in the Board decision. See Yoma v. Brown, 8 Vet.App. 298 (1995) (per curiam order) (relying on Robinette v. Brown, 8 Vet.App. 69, 80 (1995)); see also Hudgins v. Brown, 8 Vet.App. 365, 368 (1995) (per curiam order). Because this appeal has become moot by virtue of the death of the appellant, the appeal will be dismissed. See Landicho, 7 Vet.App. at 53-54. The Court expresses its concerns that counsel for the appellant did not notify this Court about the death of his client until seven months thereafter and until more than two months had elapsed after this Court had issued its May 4, 2004, affir-mance. The failure of that counsel to notify this Court in a timely fashion caused the Court to expend unnecessarily much time and effort in the preparation of the order that the instant order is withdrawing. On consideration of the foregoing, it is ORDERED that the Court’s judgment is recalled. It is further ORDERED that the Court’s order of May 4, 2004, is withdrawn. It is further ORDERED that the February 19, 2002, Board decision is VACATED. It is further ORDERED that this appeal is DISMISSED for lack of jurisdiction." }, { "docid": "9845932", "title": "", "text": "appeal. Landicho, 7 Vet.App. at 47, 54. In this case, counsel raises the possibility of the appointment not of a widow or a son, but of a “personal representative” of the estate of the deceased veteran. Although the question of a “personal representative” makes this a question of first impression for this Court (see Zevalkink, 102 F.3d at 1239 n. 4), the distinction is one without a difference. The operative event is the death of the veteran and the consequent extinguishing of his claims. See Landicho, 1 Vet.App. at 55 (Court held that “these appeals have become moot by virtue of the deaths of the original veteran appellants”). Just as the appellant’s appeal has become moot, so has the issue of substitution. As in Landicho, the appropriate action for this Court to take is to vacate the Board decision and dismiss this appeal. A decision of the Court vacating the Board decision has the legal effect of nullifying the previous merits adjudication by the regional office (RO) because that decision was subsumed by the Board decision. See Yoma v. Brown, 8 Vet.App. 298 (1995) (relying on Robinette v. Brown, 8 Vet.App. 69, 80 (1995)); see also Hudgins v. Brown, 8 Vet.App. 365, 368 (1995) (per curiam order) (accrued-benefits claim by survivor will have same character as claim veteran was pursuing at time of death, and adjudication of that accrued-benefits claim not affected by Board or RO decision nullified by Court’s order vacating Board decision). This is done to ensure that the Board decision and the underlying RO decision(s) will have no preclusive effect in the adjudication of any accrued-benefits claims derived from the veteran’s entitlements. Id. Because this appeal has become moot by virtue of the death of the veteran appellant, the appeal will be dismissed. See Landicho, 7 Vet.App. at 53-54. On consideration of the foregoing, it is ORDERED that the appellant’s motion for a stay of proceedings is denied. It is further ORDERED that the February 21, 1997, Board decision is VACATED. It is further ORDERED that this appeal is DISMISSED for lack of jurisdiction." }, { "docid": "9631246", "title": "", "text": "[the] duty to assist” and that “[e]quity demands that VA be held accountable for knowledge of the contents of the report.” Br. at 16-17. Essentially, the appellant is arguing that the Board did not consider all the evidence then of record when it decided her § 1151 DIC claim in 1987. Pursuant to this Court’s decision in Mason v. Brown, on the facts of this case the appellant could receive an earlier effective date only if there were CUE in a final RO decision or if one of the prior RO decisions were not final. Mason v. Brown, 8 Vet.App. 44, 51 (1995). However one phrases the appellant’s contention here, it is still a CUE claim. She is claiming that the Board, in its prior decision, erred in failing to consider evidence of record (assuming the “critical” report is “of record” under Bell v. Derwinski 2 Vet.App. 611, 612-13 (1992) (per curiam order)) and in applying an invalid regulation. Even assuming that the “critical” report was then “of record” and that Gardner’s holding invalidating § 3.358(c)(3) applies retroactively, the appellant is not entitled to relief under CUE because a CUE challenge cannot be made to a prior final decision of the Board. See Smith (William) v. Brown, 35 F.3d 1516, 1521 (Fed.Cir.1994) (claim of CUE is collateral attack on final decision of agency of original jurisdiction (AOJ), generally RO). Nor can a CUE claim be raised as to the prior December 1983 and February 1985 final RO decisions because they were “subsumed” within the Board’s December 1987 decision. Talbert v. Brown, 7 Vet.App. 352, 355 (1995) (citing 38 C.F.R. § 20.1104 (1995) (when determination of AOJ is affirmed by BVA, such determination is subsumed by final appellate decision)); see also Yoma v. Brown, 8 Vet.App. 298, 299 (1995) (per curiam order) (concluding that Court’s decision vacating BVA decision has legal effect of nullifying previous underlying merits adjudication by AOJ (RO) because RO decision was subsumed in BVA decision). The Supreme Court’s decision in Gardner did not sub silentio extend this Court’s jurisdiction to allow it to review prior final Board" }, { "docid": "19211920", "title": "", "text": "Ins. Co., Inc., 586 F.2d 96, 97 (8th Cir.1978) (recalling mandate because, error in court clerk’s office caused court’s erroneous decision); Verrilli v. City of Concord, 557 F.2d 664, 665 (9th Cir.1977) (recalling mandate because court simply overlooked an existing statute applicable to the case). “Another example of an ‘exceptional circumstance’ is where it was discovered that the petitioner had died prior to the issuance of the mandate.” McNaron v. Brown, 10 Vet.App. 61 (1997) (emphasis added); see Keel v. Brown, 9 Vet.App. 124 (1996) (per curiam order); see also Ferrell v. Estelle, 573 F.2d 867, 868 (5th Cir.1978). Mrs. Serra “concedes that the Court has found that the death of an appellant before this Court has issued its decision is such an ‘unusual circumstance’ so as to justify the extraordinary measure of recall.” Reply to Secretary’s Supplemental EAJA Response at 3. The issue then is whether or not the case should be dismissed because the appellant died after a decision but before mandate. Without the EAJA application in this case, we would be faced with the situation addressed in Landicho and numerous other cases before this Court, where a case is dismissed when it is found that the appellant died while the case was pending. The Court held in Landicho that substitution by a party claiming accrued benefits under 38 U.S.C. § 5121(a) is not permissible in this Court when an appellant dies while the denial by the Board of his claim for disability compensation under chapter 11 of title 38, U.S.Code, is pending here on appeal. See Zevalkink v. Brown, 102 F.3d at 1243-44. Under such circumstances, the appropriate remedy is to vacate the Board decision and to dismiss the appeal. Landicho, 7 Vet.App. at 54. Vacating the Board decision ensures that it and the underlying RO decision(s) will have no preclusive effect in the adjudication of any accrued-benefits claims derived from the Veteran’s entitlements. It also nullifies the previous merits adjudication by the RO because that decision was subsumed in the Board decision. See Yoma v. Brown, 8 Vet.App. 298 (1995) (per curiam order) (relying on Robinette" }, { "docid": "19211921", "title": "", "text": "with the situation addressed in Landicho and numerous other cases before this Court, where a case is dismissed when it is found that the appellant died while the case was pending. The Court held in Landicho that substitution by a party claiming accrued benefits under 38 U.S.C. § 5121(a) is not permissible in this Court when an appellant dies while the denial by the Board of his claim for disability compensation under chapter 11 of title 38, U.S.Code, is pending here on appeal. See Zevalkink v. Brown, 102 F.3d at 1243-44. Under such circumstances, the appropriate remedy is to vacate the Board decision and to dismiss the appeal. Landicho, 7 Vet.App. at 54. Vacating the Board decision ensures that it and the underlying RO decision(s) will have no preclusive effect in the adjudication of any accrued-benefits claims derived from the Veteran’s entitlements. It also nullifies the previous merits adjudication by the RO because that decision was subsumed in the Board decision. See Yoma v. Brown, 8 Vet.App. 298 (1995) (per curiam order) (relying on Robinette v. Brown, 8 Vet.App. 69, 80 (1995)); see also Hudgins v. Brown, 8 Vet.App. 365, 368 (1995) (per curiam order). Because an appeal becomes moot by virtue of the appellant’s death, the appeal is dismissed. See Landicho, 7 Vet.App. at 53-54. Mrs. Serra does not take issue with this process in cases where the appellant’s death precedes a decision of this Court. She does, however, contest that process in cases where the appellant dies after a decision is tendered but before mandate issues. As stated above, she cites, as the basis for his argument, Swanson, which states: “The situation in this ease is arguably different from the question that would be presented had the appellant died after the opinion had been issued — either before the judgment, or after the judgment but before the mandate had issued.” Swanson, 13 Vet.App. at 198. She is correct to say that the situation is arguably different, and in fact, the situation is different. However, the difference may not lead to a different result. As stated above, the Court" }, { "docid": "15818849", "title": "", "text": "at 54. This ensures that the Board decision and the underlying VA regional office (RO) decision^) will have no preclusive effect in the adjudication of any accrued-benefits claims derived from the veteran’s entitlements. It also nullifies the previous merits adjudication by the RO because that decision was subsumed in the Board decision. See Yoma v. Brown, 8 Vet.App. 298 (1995) (per curiam order) (relying on Robinette v. Brown, 8 Vet.App. 69, 80 (1995)); see also Hudgins v. Brown, 8 Vet.App. 365, 368 (1995) (per curiam order). Accordingly, to the extent that the BVA’s decision with respect to claims 2 and 3 was appealed by the appellant, the Secretary’s motion will be granted. To the extent that the appellant’s widow is claiming entitlement to accrued benefits under 38 U.S.C. § 5121(a), the Court lacks jurisdiction over that claim because there is no final Board decision and no timely filed Notice of Disagreement (NOD) as to that claim. See Landicho, 7 Vet.App. at 47-48 (Court dismissed appeal where Board had not addressed accrued-benefits claims by appellants seeking substitution and no NOD had been filed as to such claims); see also Erro v. Brown, 8 Vet.App. 500, 501 (1996). If the appellant’s widow wishes to pursue a claim for accrued benefits, she must first exhaust her administrative remedies before appealing to the Court. See 38 U.S.C. § 7266(a); In re Quigley, 1 Vet.App. 1 (1989). Based upon the foregoing, it is ORDERED that, as to claim 1, the Court’s November 16, 2000, mandate is recalled and mandate is issued as of April 14, 2000. It is further ORDERED that, as to claim 1, the Secretary’s motion is denied. It is further ORDERED that, as to claim 1, the appellant’s widow’s motion to substitute is denied as moot. It is further ORDERED that, as to claims 2 and 3, the Secretary’s motion is granted. It is further ORDERED that, as to claims 2 and 3, the Court’s judgment and mandate are recalled. It is further ORDERED that, as to claims 2 and 3, the Court’s September 22, 1999, memorandum decision is withdrawn. It is" }, { "docid": "19265877", "title": "", "text": "the appeal; that motion was later opposed. On its own accord, the Court, on June ■ 17, 2005, recalled judgment. On July 21, 2005, Mr. Padgett’s widow filed a motion for substitution or, in the alternative, intervention. This Court adheres to the case- or-controversy jurisdictional restraints provided for in Article III of the U.S. Constitution. See Mokal v. Derwinski, 1 Vet.App. 12, 13-15 (1990). Consequently, because claims for disability compensation under chapter 11 of title 38, U.S.Code, do not survive a veteran, when a veteran dies while appealing a Board decision to the Court, there no longer remains a case or controversy and the Court must dismiss the appeal. See Landicho v. Brown, 7 Vet.App. 42 (1994); see also Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed.Cir.1996) (expressly agreeing with this Court’s Landicho holding); Richard v. West, 161 F.3d. 719, 721 (Fed.Cir.1998). If, after a veteran’s death, the Court issues orders in which it enters its judgment on the veteran’s appeal and acts on an application for EAJA fees and those orders constitute the mandate of the Court, the Court must recall those mandates and revoke those orders. See Kawad v. West, 12 Vet.App. 61, 62 (1998) (per curiam order); Keel v. Brown, 9 Vet.App. 124, 126 (1996). In addition, the Court must vacate the underlying Board decision to prevent it from acting as a barrier to the success of any claimant seeking accrued benefits. See Yoma v. Brown, 8 Vet.App. 298, 299 (1995) (per curiam order) (explaining that vacatur of Board decision causes vacatur of underlying regional office decision because latter was subsumed by former). Here, Mr. Padgett died while appealing the August 8, 2002, Board decision to the Court. The Court will therefore vacate that Board decision and dismiss the appeal for lack of jurisdiction. On consideration of the foregoing, it is ORDERED that the Secretary’s motion to dismiss is granted. The Court’s April 19, 2005, opinion is withdrawn. It is further ORDERED that the August 8, 2002, Board decision is VACATED. It is further ORDERED that this appeal is DISMISSED for lack of jurisdiction. It is further" }, { "docid": "19265878", "title": "", "text": "of the Court, the Court must recall those mandates and revoke those orders. See Kawad v. West, 12 Vet.App. 61, 62 (1998) (per curiam order); Keel v. Brown, 9 Vet.App. 124, 126 (1996). In addition, the Court must vacate the underlying Board decision to prevent it from acting as a barrier to the success of any claimant seeking accrued benefits. See Yoma v. Brown, 8 Vet.App. 298, 299 (1995) (per curiam order) (explaining that vacatur of Board decision causes vacatur of underlying regional office decision because latter was subsumed by former). Here, Mr. Padgett died while appealing the August 8, 2002, Board decision to the Court. The Court will therefore vacate that Board decision and dismiss the appeal for lack of jurisdiction. On consideration of the foregoing, it is ORDERED that the Secretary’s motion to dismiss is granted. The Court’s April 19, 2005, opinion is withdrawn. It is further ORDERED that the August 8, 2002, Board decision is VACATED. It is further ORDERED that this appeal is DISMISSED for lack of jurisdiction. It is further ORDERED that the motion for substitution or, in the alternative, intervention is denied as moot. STEINBERG, Judge, dissenting: I would deny the Secretary’s motion to dismiss and would reenter judgment and issue mandate in due course. I see no good reason to disturb the important precedents established by the Court’s April 19, 2005, opinion or to deprive a potential accrued-benefits claimant of the benefit of the Court’s reversal of the Board of Veterans’ Appeals decision denying an award of service connection- — that is, secondary service connection for the veteran’s right-hip disability. The vacatur of this Court’s opinion and the dismissal of this appeal may adversely affect Mrs. Padgett, who has submitted to the Department of Veterans Affairs (VA) under 38 U.S.C. § 5121(a) an accrued-benefits claim. Based on this Court’s reversal, Mrs. Padgett, if qualified as an accrued-benefits claimant, would be entitled to accrued benefits because the merits of her claim would necessarily have been decided by this Court’s full-Court decision to award service connection. See Browder v. Brown, 5 Vet.App. 268, 270-71 (1993)" }, { "docid": "9845931", "title": "", "text": "ORDER PER CURIAM. On August 11, 1997, counsel for the appellant advised the court that the veteran had died on June 30, 1997. Counsel for the appellant filed a motion for a 60-day stay of proceedings in order to allow time for a personal representative to be appointed. Counsel for the Secretary opposed the motion. The Court held in the consolidated cases of Landicho v. Brown and Oseo v. Brown that substitution of a widow in the former and a son in the latter is not permissible in this Court where the appellants are veterans who die while the denials by the Board of Veterans’ Appeals (Board) of their claims for disability compensation under chapter 11 of title 38, U.S.Code, are pending here on appeal. Landicho, 7 Vet.App. 42, 44 (1994); see Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed.Cir.1996). The Court held that, because “veterans’ claims under chapter 11 do not survive their deaths,” the appropriate remedy is to deny substitution, vacate the Board decision from which the appeal was taken, and dismiss the appeal. Landicho, 7 Vet.App. at 47, 54. In this case, counsel raises the possibility of the appointment not of a widow or a son, but of a “personal representative” of the estate of the deceased veteran. Although the question of a “personal representative” makes this a question of first impression for this Court (see Zevalkink, 102 F.3d at 1239 n. 4), the distinction is one without a difference. The operative event is the death of the veteran and the consequent extinguishing of his claims. See Landicho, 1 Vet.App. at 55 (Court held that “these appeals have become moot by virtue of the deaths of the original veteran appellants”). Just as the appellant’s appeal has become moot, so has the issue of substitution. As in Landicho, the appropriate action for this Court to take is to vacate the Board decision and dismiss this appeal. A decision of the Court vacating the Board decision has the legal effect of nullifying the previous merits adjudication by the regional office (RO) because that decision was subsumed by the Board" }, { "docid": "19211922", "title": "", "text": "v. Brown, 8 Vet.App. 69, 80 (1995)); see also Hudgins v. Brown, 8 Vet.App. 365, 368 (1995) (per curiam order). Because an appeal becomes moot by virtue of the appellant’s death, the appeal is dismissed. See Landicho, 7 Vet.App. at 53-54. Mrs. Serra does not take issue with this process in cases where the appellant’s death precedes a decision of this Court. She does, however, contest that process in cases where the appellant dies after a decision is tendered but before mandate issues. As stated above, she cites, as the basis for his argument, Swanson, which states: “The situation in this ease is arguably different from the question that would be presented had the appellant died after the opinion had been issued — either before the judgment, or after the judgment but before the mandate had issued.” Swanson, 13 Vet.App. at 198. She is correct to say that the situation is arguably different, and in fact, the situation is different. However, the difference may not lead to a different result. As stated above, the Court held in Landicho that substitution is not permissible when an appellant dies while his claim is pending here on appeal. The thrust of her argument appears to be that the case was somehow not pending because the Court had issued a decision. She says: Certainly, this Court has ruled, beginning with Landicho, that the death of an appellant while the appeal is pending before the Court moots the appeal. Landicho v. Brown, 7 Vet.App. [at 47]. In that case, and others that followed, the Court vacated the BVA decisions on appeal. That is done to ensure the Board decision and the underlying RO decision(s) will have no preclusive effect in the adjudication of any accrued-benefits claims, under 38 U.S.C. § 5121, derived from the veteran’s entitlements. Id. at 54-55. It is important to remember, however, that in Landicho the BVA decision was indeed pending on appeal, i.e., the Court had not ruled on the merits. Opposition to Recall of the Mandate at 5. She defines “pending” as a situation where the Court has not ruled" }, { "docid": "11249313", "title": "", "text": "ORDER PER CURIAM: The appellant, through counsel, appealed a February 19, 2002, Board of Veterans’ Appeals (Board) decision. On May 4, 2004, the Court affirmed the Board’s decision. Desbrow v. Principi, 18 Vet.App. 30, 33 (2004) (per curiam order). The Court entered judgment on May 26, 2004. On July 20, 2004, the appellant’s counsel at that time filed with this Court a motion to substitute a party under Rule 43(a)(2) of this Court’s Rules of Practice and Procedure; in his motion, counsel notified the Court of the appellant’s death. On September 13, 2004, the appellant’s counsel submitted, through another counsel, additional notice to the Court; accompanying the notification is a copy of the appellant’s death certificate, which indicates that the appellant died on December 14, 2003, nearly five months before the Court’s decision in this case. Counsel requests that the Court vacate the underlying Board decision. The Court held in Landicho v. Brown, 7 Vet.App. 42, 46-49 (1994), that substitution by a party claiming accrued benefits under 38 U.S.C. § 5121(a) is not permissible in this Court where the appellant is a veteran who dies while the denial by the Board of the veteran’s claim for disability compensation under chapter 11 of title 38, U.S.Code, is pending here on appeal. See Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed.Cir.1996) (expressly agreeing with this Court’s Landicho holding). The Court held that, under such circumstances, the appropriate remedy is to vacate the Board decision from which the appeal was taken and to dismiss the appeal. Landicho, 7 Vet.App. at 54. This ensures that the Board decision and the underlying regional office (RO) decision(s) will have no preclusive effect in the adjudication of any accrued-benefits claims derived from the veteran’s entitlements. It also nullifies the previous merits adjudication by the RO because that decision was subsumed in the Board decision. See Yoma v. Brown, 8 Vet.App. 298 (1995) (per curiam order) (relying on Robinette v. Brown, 8 Vet.App. 69, 80 (1995)); see also Hudgins v. Brown, 8 Vet.App. 365, 368 (1995) (per curiam order). Because this appeal has become moot by virtue of" }, { "docid": "9631247", "title": "", "text": "3.358(c)(3) applies retroactively, the appellant is not entitled to relief under CUE because a CUE challenge cannot be made to a prior final decision of the Board. See Smith (William) v. Brown, 35 F.3d 1516, 1521 (Fed.Cir.1994) (claim of CUE is collateral attack on final decision of agency of original jurisdiction (AOJ), generally RO). Nor can a CUE claim be raised as to the prior December 1983 and February 1985 final RO decisions because they were “subsumed” within the Board’s December 1987 decision. Talbert v. Brown, 7 Vet.App. 352, 355 (1995) (citing 38 C.F.R. § 20.1104 (1995) (when determination of AOJ is affirmed by BVA, such determination is subsumed by final appellate decision)); see also Yoma v. Brown, 8 Vet.App. 298, 299 (1995) (per curiam order) (concluding that Court’s decision vacating BVA decision has legal effect of nullifying previous underlying merits adjudication by AOJ (RO) because RO decision was subsumed in BVA decision). The Supreme Court’s decision in Gardner did not sub silentio extend this Court’s jurisdiction to allow it to review prior final Board decisions not otherwise subject to review in this Court. Because the error asserted by the appellant is contained in the Board’s December 1987 decision (not the decision on appeal to this Court), the appellant can challenge that Board decision, in a way that might be subject to this Court’s review, only on the basis of CUE, and the Federal Circuit’s decision in Smith is controlling in precluding this Court from reviewing that decision. See Talbert, supra. The appellant’s contention that the Board’s December 1987 decision was the result of “obvious error” is also unavailing. “In Smith, the Federal Circuit equated ‘obvious error’ claims with claims of ‘clear and unmistakable error’ and held that claims of such [obvious] error by the Board are not subject to judicial review.” Chisem v. Brown, 8 Vet.App. 374 (1995); see also Russell v. Principi, 3 Vet.App. 310, 314 (1992) (en banc) (also equating claims of CUE with obvious-error claims). The Court holds that it has no jurisdiction to review the prior final December 1987 Board decision in this case. Accordingly," }, { "docid": "22334300", "title": "", "text": "a Notice of Appeal is filed or while a proceeding is pending in this Court, [any person claiming entitlement to accrued benefits under 38 U.S.C. § 5121(a),] the personal representative of the deceased party’s estate[,] or any other appropriate person may, to the extent permitted by law, be substituted as a party on motion by such person or by any party. If no such person exists, any party may suggest the death on the record and proceedings will then be as the Court directs. IV. Conclusion In view of the foregoing discussion and upon consideration of the pleadings and oral arguments of the parties, to all of whom the Court is indebted for the high quality of their presentations, the Court grants the Secretary’s motion for reconsideration in Landicho and grants in part the Secretary’s motion to dismiss as to both the appellants. The Court holds that each appellant was improperly substituted to carry on the appeals of the deceased veterans in this Court and that both appeals must, therefore, be dismissed. The Court further holds that the Board’s August 27, 1990, decision as to veteran Lan-dicho and its September 19, 1991, decision as to veteran Oseo were not final immediately before the respective veterans’ deaths because an NOA had been filed with this Court, see Tobler, supra; cf. Kenner, supra; that the underlying RO decisions are likewise not final because the BVA decisions had subsumed them; see Olson, supra; and that the veterans’ deaths rendered the BVA decisions no longer of force or effect and therefore nullities, See Munsingwear, supra. Accordingly, in order to ensure that the two BVA decisions and the underlying RO decisions will have no preclusive effect in the adjudication of any accrued-benefits claims derived from the respective veterans’ entitlements, the Court vacates the Board’s August 27, 1990, and September 19, 1991, decisions and directs the Board to vacate the respective March 1989 and April 1991 RO decisions in these cases. See 38 U.S.C. § 7252(a); cf. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Because these appeals have become moot by virtue of the deaths" }, { "docid": "14701304", "title": "", "text": "Court’s Landicho holding). Under such circumstances, the Court held that the appropriate remedy is to vacate the Board decision from which the appeal was taken and to dismiss the appeal. Landicho, 7 Vet.App. at 54. This ensures that the Board decision and the underlying regional office (RO) decision(s) will have no preclusive effect in the adjudication of any accrued-benefits claims derived from the veteran’s entitlements. It also nullifies the previous merits adjudication by the RO because that decision was subsumed in the Board decision. See Yoma v. Brown, 8 Vet.App. 298 (1995) (relying on Robinette v. Brown, 8 Vet.App. 69, 80 (1995)); see also Hudgins v. Brown, 8 Vet.App. 365, 368 (1995) (per curiam order). Because this appeal has become moot by virtue of the death of the appellant, the appeal will be dismissed. See Landicho, 7 Vet.App. at 53-54. Upon consideration of the foregoing, it is ORDERED that the Court’s judgment is recalled. It is further ORDERED that the Court’s May 12, 2000, opinion is withdrawn. It is further ORDERED that the July 30, 1997, BVA decision is VACATED. It is further ORDERED that this appeal is DISMISSED for lack of jurisdiction." }, { "docid": "14701303", "title": "", "text": "ORDER PER CURIAM: On May 12, 2000, the Court issued its opinion in the instant appeal. Judgment was entered on June 5, 2000. On July 18, 2000, the Secretary filed an unopposed motion to (1) recall mandate and judgment; (2) withdraw the Court’s decision; (3) vacate the Board of Veterans’ Appeals (Board or BVA) decision; and (4) dismiss this appeal. The Secretary asserts as a basis for the motion that the appellant died on December 30, 1999, before the Court issued its opinion here. Accompanying the Secretary’s motion is a copy of the appellant’s certificate of death. The Court held in Landicho v. Brown, 7 Vet.App. 42, 46-49 (1994), that substitution by a party claiming accrued benefits under 38 U.S.C. § 5121(a) is not permissible in this Court where the appellant is a veteran who dies while the denial by the Board of the veteran’s claim for disability compensation under chapter 11 of title 38. U.S.Code, is pending here on appeal. See also Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed.Cir.1996) (expressly agreeing with this Court’s Landicho holding). Under such circumstances, the Court held that the appropriate remedy is to vacate the Board decision from which the appeal was taken and to dismiss the appeal. Landicho, 7 Vet.App. at 54. This ensures that the Board decision and the underlying regional office (RO) decision(s) will have no preclusive effect in the adjudication of any accrued-benefits claims derived from the veteran’s entitlements. It also nullifies the previous merits adjudication by the RO because that decision was subsumed in the Board decision. See Yoma v. Brown, 8 Vet.App. 298 (1995) (relying on Robinette v. Brown, 8 Vet.App. 69, 80 (1995)); see also Hudgins v. Brown, 8 Vet.App. 365, 368 (1995) (per curiam order). Because this appeal has become moot by virtue of the death of the appellant, the appeal will be dismissed. See Landicho, 7 Vet.App. at 53-54. Upon consideration of the foregoing, it is ORDERED that the Court’s judgment is recalled. It is further ORDERED that the Court’s May 12, 2000, opinion is withdrawn. It is further ORDERED that the July 30," } ]

[ { "docid": "22657226", "title": "", "text": "a federal court’s power to disturb state-court convictions. The United States District Court for the Northern District of Texas, after reviewing the evidence before the state trial court, determined that petitioner failed to establish a constitutional violation warranting habeas relief. The Court of Appeals for the Fifth Circuit, concluding there was insufficient merit to the case, denied a certificate of appeal- ability (COA) from the District Court’s determination. The COA denial is the subject of our decision. At issue here are the standards AEDPA imposes before a court of appeals may issue a COA to review a denial of habeas relief in the district court. Congress mandates that a prisoner seeking postconviction relief under 28 U. S. C. § 2254 has no automatic right to appeal a district court’s denial or dismissal of the petition. Instead, petitioner must first seek and obtain a COA. In resolving this case we decide again that when a habeas applicant seeks permission to initiate appellate review of the dismissal of his petition, the court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims. Slack v. McDaniel, 529 U. S. 473, 481 (2000). Consistent with our prior precedent and the text of the habeas corpus statute, we reiterate that a prisoner seeking a COA need only demonstrate “a substantial showing of the denial of a constitutional right.” 28 U. S. C. §2253(c)(2). A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. Slack, supra, at 484. Applying these principles to petitioner’s application, we conclude a COA should have issued. I A Petitioner, his wife Dorothy Miller-El, and one Kenneth Flowers robbed a Holiday Inn in Dallas, Texas. They emptied the cash drawers and ordered two employees, Doug Walker and Donald Hall, to lie on the floor. Walker and Hall were gagged with strips of fabric, and their hands and feet were bound. Petitioner asked Flowers if he was going" } ]

[ { "docid": "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": "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": "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": "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": "5215502", "title": "", "text": "2011 WL 4826968 (Tex.Crim. App. Oct. 12, 2011). Garza filed his amended federal habeas petition in 2012, which the district court denied. Garza v. Thaler, 909 F.Supp.2d 578, 691 (W.D.Tex.2012). The district court also denied Garza a COA. Id. Garza now requests a COA from this court. II. The AEDPA governs our consideration of Garza’s request for a COA. Under the AEDPA, a state habeas petitioner must obtain a COA before he can appeal the federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a jurisdictional prerequisite without which federal courts of appeals lack jurisdiction to rule on the merits of the appeals from habeas petitioners). A COA is warranted upon a substantial showing of the denial of a constitutional right. § 2253(c)(2). A petitioner satisfies this standard if reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To obtain a COA when the district court has denied relief on procedural grounds, such as procedural default, a petitioner must show both a debatable claim on the merits and that the district court’s procedural ruling is debatable. See id. at 484-85, 120 S.Ct. 1595. The issue is the debatability of the underlying constitutional claim, not the resolution of the debate. Miller-El, 537 U.S. at 342, 123 S.Ct. 1029; see id. at 338, 123 S.Ct. 1029 ([A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail). This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Id. at 336, 123 S.Ct. 1029. In cases involving the death penalty, any doubts as to whether a COA shoúld issue must be resolved in [the petitioner’s] favor. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We" }, { "docid": "23442042", "title": "", "text": "court’s decision to deny his “Motion for Leave to File a Second Amended Petition for Writ of Habeas Corpus.” As explained below, we treat Murray’s uncertified claim as a motion to expand the certificate of appealability (“COA”) that we previously granted. Under Federal Rule of Appellate Procedure 22(b)(2), a notice of appeal constitutes an application for a COA. See Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Thus, where “a motions panel grants a COA in part and denies a COA in part,” “[uncerti-fied issues raised and designated in [the manner prescribed by Ninth Circuit Rule 22-1] will be construed as a motion to expand the COA and will be addressed by [us] to such extent as [we] deem[ ] appropriate.” 9th Cir. R. 22-1(d)-(e). A COA may issue in federal habe-as review of state proceedings “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Wilson v. Belleque, 554 F.3d 816, 825-26 (9th Cir.2009). This is not an exacting standard. Id. at 826. We will “not decline the application for a COA merely because [we] believe[ ] the applicant will not [ultimately] demonstrate an entitlement to relief.” Miller-El, 537 U.S. at 337, 123 S.Ct. 1029. Rather, we will issue a COA “if jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Wilson, 554 F.3d at 826. If, however, the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when ... jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not[, however,] conclude" }, { "docid": "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": "20905966", "title": "", "text": "standard that should be applied to the COA requirement under the current section 2253 and its requirement that a COA only issue upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Courts of appeals that have articulated standards for issuance of a COA in this context have generally drawn from the Supreme Court’s decision in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). United States v. Arrington, 763 F.3d 17, 23 (D.C.Cir.2014); Spitznas, 464 F.3d at 1225; Reid, 369 F.3d at 371; Gonzalez, 366 F.3d at 1267. In Slack, the Court determined the standard governing issuance of a COA when the district court denies a habeas petition on procedural grounds. The Court articulated a two part standard: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. The Court held that this test “gives meaning to Congress’s requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the ‘substantial showing’ standard provided in Barefoot ... and adopted by Congress in AEDPA.” Id. The substantial showing standard is met when “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Id. at 484, 120 S.Ct. 1595 (citation and internal quotation marks omitted). Similarly, we hold that a COA should only issue for the appeal arising from the denial of a Rule 60(b) motion in a section 2255 proceeding if the movant shows that (1) jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 60(b) motion and" }, { "docid": "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": "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": "22915650", "title": "", "text": "after the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) became effective, we may only address issues for which a certificate of appealability has been granted. See id. § 2253(c)(1); Slack v. McDaniel, 529 U.S. 473, 481-82, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Moore v. Marr, 254 F.3d 1235, 1238 (10th Cir.), cert. denied, — U.S. -, 122 S.Ct. 670, 151 L.Ed.2d 584 (2001). The district court declined to grant a COA on any of the issues raised in this appeal. Nonetheless, we may grant a COA and consider the underlying merits of the appeal, if Mr. Bullock “demonstrate[sJ 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. For the reasons outlined below, we find that on each claim Mr. Bullock “has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and, therefore, we conclude that reasonable jurists “would find the district court’s [decision] ... debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. Consequently, we grant a COA on each of the three issues raised in Mr. Bullock’s habeas petition. However, because Mr. Bullock filed the underlying habeas petition before the enactment of the AEDPA, we apply pre-AEDPA law when reviewing the merits of his habeas petition. See Tillman v. Cook, 215 F.3d 1116, 1121 (10th Cir.2000). Under pre-AEDPA law, “we presume state court factual determinations to be correct,” and where, as here, the federal district court made factual findings after holding an evidentiary hearing, we review those findings “for clear error.” Romero v. Tansy, 46 F.3d 1024, 1028 (10th Cir.1995). In either situation, we review the district court’s “conclusions of law de novo.” Tillman, 215 F.3d at 1121. Finally, “[w]e may grant relief to a state prisoner only if state court error deprived him of fundamental rights guaranteed by the Constitution of the United States.” Id. (quoting Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir.1999) (further quotations omitted)). III. Ineffective Assistance of Trial Counsel Mr. Bullock devotes the overwhelming majority of his" }, { "docid": "18061434", "title": "", "text": "§ 2254 habeas corpus petition, however, the Antiterrorism and Effective Death Penalty Act of 1996 (\"AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, \"governs the conditions of [Jones’s] appeal, and so he was required to seek a COA to obtain appellate review of the dismissal of his habeas petition.” Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). We treat Jones's notice of appeal, filed on September 24, 2013, as an application for a COA. See Fed. R.App. P. 22(b); Slack, 529 U.S. at 483, 120 S.Ct. 1595. When the district court denies a habeas corpus petition on procedural grounds and fails to reach the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows \"that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. Reviewing Jones's motion, we conclude that he has satisfied AEDPA's requirements for a COA by making “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and by showing that jurists of reason could debate whether the district court properly dismissed Jones’s Rule 60(b) motion as a disguised (and unauthorized) second or successive 28 U.S.C. § 2254 habeas corpus petition. We grant Jones a COA, though this of course is not the same as authorizing him to file a second or successive 28 U.S.C. § 2254 habeas corpus petition based on the standard in 28 U.S.C. § 2244(b). . An Arizona execution warrant expires 24 hours from the date it sets for the execution. Ariz. R.Crim. P. 31.17(c)(3). Jones’s warrant sets his execution for October 23, 2013, and therefore expires the next day. Because it would take far longer than that to reopen and adjudicate the claims Jones now wishes to pursue, the State would be forced to obtain a new warrant if Jones is allowed to proceed but then loses. Thus, the likely need to" }, { "docid": "23197595", "title": "", "text": "and the State’s summary-judgment motion was denied as moot. See Foster v. Dretke, No. SA-02-CA-301-RF, 2005 U.S. Dist. LEXIS 13862 (S.D. Tex. 3 Mar. 2005). Each side appealed. To do so, Foster requested a COA from our court on two claims. Foster, 2006 WL 616980, addresses the denial of that request. II. Review of this 28 U.S.C. § 2254 habeas proceeding is subject to the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA). See, e.g., Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Before addressing the conditional habeas relief granted by the district court, we consider the belated COA request for a stand-alone actual-innocence claim. A. Under AEDPA, Foster may not appeal the denial of habeas relief unless he obtains a COA from either the district, or this, court. 28 U.S.C. § 2253(c); Fed. R.App. P. 22(b)(1); Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under Federal Rule of Appellate Procedure 22(b)(1), the district court must first decide whether to grant a COA before one can be requested here. As noted, the district court denied a COA for the claim Foster seeks to appeal here. Obtaining a COA requires “a substantial showing of the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2); e.g., Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack, 529 U.S. at 483, 120 S.Ct. 1595. For that requisite showing, an applicant usually must demonstrate “reasonable jurists could debate whether (or, for that matter, agree that) the [federal-habeas] petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further’ ”. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). Where, as here, the district court’s habeas denial includes a procedural ruling, as opposed to one on the underlying constitutional claim, the showing is expanded. See Hall v. Cain, 216 F.3d 518, 521 (5th Cir.2000). In that situation, the applicant must show" }, { "docid": "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": "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": "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": "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": "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": "18128604", "title": "", "text": "and the files and records of the case conclusively show that the prisoner is entitled to no relief.’ ” United States v. Morrison, 98 F.3d 619, 625 (D.C.Cir.1996) (quoting 28 U.S.C. § 2255). The Court finds the record in this case conclusively shows that the defendant is not entitled to relief, and thus, will dismiss the motion without a hearing. III. CERTIFICATE OF APPEALA-BILITY A petitioner must obtain a certifícate of appealability (“COA”) before pursuing any appeal from a final order in a § 2255 proceeding. See 28 U.S.C. § 2253(c)(1)(B). When the denial of a § 2255 motion is based on the merits of the claims in the motion, a district court should issue a certificate of appealability only when the appeal presents a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, the Supreme Court stated that when a district court rejects the constitutional claims on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Because the defendant has not made a substantial showing of the denial of a constitutional right, and because the Court finds that reasonable jurists would not find the Court’s assessments of his constitutional claims debatable or wrong, the Court declines to issue a certificate of appealability. IV. CONCLUSION Because the defendant was lawfully arrested on May 12, 2008, the Court concludes that Ms. Shaner’s failure to file a motion to quash the indictment or a motion to suppress evidence resulted in no prejudice to defendant’s case. Thus, defendant’s Motion must be denied. A separate Order consistent with this Memorandum Opinion shall issue this date. . The government inconsistently identified the FBI Agent who spoke with the tipster on May 12, 2008. Compare Opp'n 16 (\"citizen contacted Agent DeJesus\"), with id. at 25 (\"citizen contacted that FBI agent”), and DeJesus Aff. ¶ 13, ECF No. 1-1 (\"citizen contacted the FBI agent”). Special Agent DeJesus testified that his affidavit was true and accurate" } ]

[ { "docid": "18550292", "title": "", "text": "and granted its cross-motion. The Firsdons timely appealed. We review the district court’s grant of summary judgment de novo. Shahid v. Ford Motor Co., 76 F.Sd 1404, 1408 (6th Cir.1996). II. THE 1986 AND 1987 CLAIMS The district court correctly observed that a refund claim filed with the I.R.S. is a jurisdictional prerequisite to a refund action in the federal district court. See Firsdon v. United States, No. 3:93-CV-7726, 1994 WL 773397, at *1 (N.D.Ohio Dec.20, 1994); 26 U.S.C. § 7422(a). Furthermore, a claim filed with the I.R.S. must be brought “within 3 years from the time the return was filed or 2 years from the time the tax was paid,” whichever comes later. 26 U.S.C. § 6511(a). In this case, the Firsdons do not dispute that their 1986 and 1987 refund claims failed to meet the strict requirements of I.R.C. § 6511(a). Therefore, unless the time period could somehow have been tolled, the district court did not have subject matter jurisdiction over these claims, and they were properly dismissed. The Firsdons argue that the statutory period was in fact tolled during the pendency of their bankruptcy proceeding, under section 346(i)(2) of the Bankruptcy Code, 11 U.S.C. § 346(i)(2). Section 346(i)(2), like I.R.C. § 1398(i), provides that at the close of a bankruptcy proceeding, debtors shall succeed to any unused tax attributes (including NOLs) to which the estate originally succeeded at the inception of the proceeding. Unlike I.R.C. § 1398®, though, 11 U.S.C. § 346(i)(2) goes on to state: “The debtor may utilize such tax attributes as though any applicable time limitations on such utilization by the debtor were suspended during the time during which the case was pending.” On its face, this language appears to support the Firsdons’ contention that I.R.C. § 6511(a) should have been tolled. The sweep of this sentence is significantly circumscribed, however, by § 346(a), which states: Except to the extent otherwise provided in this section, subsections (b), (e), (d), (e), (g), (h), (i), and (j) of this section apply notwithstanding any State or local law imposing a tax, but subject to the Internal Revenue" } ]

[ { "docid": "15702596", "title": "", "text": "the IRS proof of claim was still before the bankruptcy court, no possible waiver of sovereign immunity or route around the jurisdictional requirements of §§ 7422 and 6511 was available. III. Conclusion The trustee failed to file a refund claim within the statute of limitations contained in I.R.C. § 6511 and failed to raise the refund issue in the bankruptcy court while a live proof of claim by the IRS was still before it. Under the circumstances, we find that the trustee is now barred from recovering on his refund claim. We reverse the judgment of the court below and remand for proceedings consistent with this opinion. . The trustee at the time was Dale L. McCullough. He has since been succeeded in that role by appellee here, William T. Neary. . We note that the Bankruptcy Code provides a reprieve from the statute of limitations clock for both debtor and trustee once bankruptcy has been filed. 11 U.S.C. § 108 extends the time in which a trustee or debtor may commence an action or file a pleading, etc. for the later of the expiration of the statute of limitations or two years after filing for bankruptcy for commencing an action under § 108(a) and for sixty days after filing for the actions indicated by § 108(b). The trustee’s adversary proceeding, commenced in 1997, occurred after both the expiration of the statute of limitations contained in I.R.C. § 6511 and any extension of time granted by Bankr.Code § 108. (Bankr.Code § 108 does not apply to the filing of administrative claims under the Internal Revenue Code. See TLI, Inc. v. United States, 100 F.3d 424, 427 (5th Cir.1996)). . The Eighth Circuit recently considered a case raising the question of whether a bankruptcy trustee must comply in all circumstances with I.R.C. §§ 6511 and 7422. See United States v. Kearns, 177 F.3d 706 (8th Cir.1999). The Eighth Circuit panel held that §§ 6511 and 7422 did not deprive a bankruptcy court of jurisdiction to determine tax liability for a particular year where a live proof of claim by the IRS" }, { "docid": "15702584", "title": "", "text": "for a refund of pre-petition taxes at any time during the pendency of the bankruptcy case. The automatic stay provision in the Bankruptcy Code, 11 U.S.C. § 362, would thus create an implied exception to the time limits set out in I.R.C. § 6511. We agree with the United States and the bankruptcy court that the trustee’s claim was not timely under I.R.C. § 6511. Section 6511 contains very specific terms dictating the circumstances under which a refund claim may be filed. Other terms tolling the statute should not be implied into it without evidence of legisla tive intent. See United States v. Brockamp, 519 U.S. 347, 350-53, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997) (holding that no implied equitable tolling term may be read into § 6511 because the language of the statute and Congressional intent are to the contrary); see also Firsdon v. United States, 95 F.3d 444 (6th Cir.1996)(holding that the statute of limitations contained in § 6511 is not tolled during the pendency of the bankruptcy suit). The trustee did not file his refund claim within the parameters of § 6511 and it was therefore not timely under that section. Furthermore, the automatic stay imposed by the Bankruptcy Code does not operate in the manner that the trustee suggests. The automatic stay contained in Bankr.Code § 362 would prohibit further action against property in the bankruptcy estate by the IRS. The stay would not, however, extend indefinitely the time for a trustee to take action against the IRS. According to the trustee’s interpretation of § 362, the statute of limitations contained in I.R.C. § 6511 would be tolled until the conclusion of the bankruptcy. Yet the automatic stay is not designed to suspend all statutes of limitations applicable to the trustee, see Gordon v. Whitmore (In re Merrick), 175 B.R. 333, 337 n. 6 (9th Cir. BAP 1994) (listing cases); AMS Realty, Inc. v. Too (In re AMS Realty, Inc.), 114 B.R. 229 (Bankr.C.D.Cal.1990), and the trustee points to no controlling authority showing that I.R.C. § 6511, in particular, should be overridden by Bankr.Code § 362." }, { "docid": "1333752", "title": "", "text": "tolled, was quick to point out that Irwin was not controlling. See id. at 349-50, 117 S.Ct. 849. While the Irwin Court held that “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States,” the Brockamp Court noted that because section 6511 does not create a cause' of action against private defendants, the “rebuttable presumption” created by the Court in Irwin arguably did not apply to the time limitation set forth in section 6511. Id. Nonetheless, the Brockamp Court assumed, but only for the sake of argument, “that a tax refund suit and a private suit for restitution are sufficiently similar to warrant asking Irwin’s negatively phrased question: Is there good reason to believe that Congress did not want the equitable tolling doctrine to apply?” Id. at 350, 117 S.Ct. 849. Thus, applying Irwin’s rebuttable presumption and addressing the specific time limitation in section 6511, the Brockamp Court first noted that: Section '6511 sets forth its time limitations in unusually emphatic form. Ordinarily limitations statutes use fairly simple language, which one can often plausibly read as containing an implied “equitable tolling” exception. See, e.g., 42 U.S.C. § 2000e-16(c) (requiring suit for employment discrimination to be filed “[wjithin 90 days of receipt of notice of final [EEOC] action”). But § 6511 uses language that is not simple. It sets forth its limitations in a highly detailed technical manner, that linguistically speaking, cannot easily be read as containing implicit exceptions. Id. The Court also noted that: Section 6511 sets forth explicit exceptions to its basic time limits, and those very specific exceptions do not include “equitable tolling.” See [26 U.S.C.] § 6511(d) (establishing special time limit rules for refunds related to operating losses, credit carrybacks, foreign taxes, self-employment taxes, worthless securities, and bad debts). Id. at 351-52, 117 S.Ct. 849. The Brock-amp Court ultimately held that Congress did not intend to permit equitable tolling with respect to section 6511: To read an “equitable tolling” provision into these provisions, one would have to assume an implied exception for tolling virtually every" }, { "docid": "20360951", "title": "", "text": "income tax refund before the courts and the filing of administrative claims for a federal income tax refund with the IRS. They can be briefly explained as follows. A jurisdictional prerequisite of all federal income tax refund claims under the Tucker Act is the claimant’s full payment of the tax liability, penalties, and interest at issue. See Flora, 362 U.S. at 150, 80 S.Ct. 630; McNeil, 293 Fed.Appx. at 760. A taxpayer seeking recovery of income taxes must also comply with the applicable provisions of the Internal Revenue Code (“Code”). See United States v. Clintwood Elkhorn Min. Co., 553 U.S. 1, 4, 128 S.Ct. 1511, 170 L.Ed.2d 392 (2008). If a taxpayer wishes to file suit in court, the taxpayer must comply with the statute of limitations contained in I.R.C. § 6532(a)(1), which requires a suit to be filed within two years after the IRS disallows the plaintiffs claim for refund and mails by certified or registered mail a notice of the disal-lowance. I.R.C. § 6532(a)(1). The only statutory exception to the two year filing requirement is contained in I.R.C. § 6532(a)(2), which allows for extension of time for filing suit when agreed to in writing by the taxpayer and “a district director, a director of an internal revenue service center, or an assistant regional commissioner” of the IRS. 26 C.F.R. § 301.6532-l(b). The IRS’s mere consideration or reconsideration of a taxpayer’s claim after mailing a notice of disallowance does not extend the limitations period for filing suit. I.R.C. § 6532(a)(4). Separate from the time for filing a suit in court, the Code also strictly limits the time within which a taxpayer may file an administrative claim for refund with the IRS in the first instance. The Supreme Court has recognized that the time limit for filing such an administrative refund claim with the IRS is established by I.R.C. § 6511(a). Clintwood, 553 U.S. at 4, 128 S.Ct. 1511. A court may not equitably toll the statutory time limitations set forth in I.R.C. § 6511 for filing administrative tax refund claims, United States v. Brockamp, 519 U.S. 347, 348, 117" }, { "docid": "15702586", "title": "", "text": "In absence of such a demonstration, we conclude that Bankr.Code § 362 does not toll the statute of limitations for the filing of a refund claim by a bankruptcy trustee under I.R.C. § 6511. See Bugge v. United States (In re Bugge), 99 F.3d 740, 745 (5th Cir.1996) (“We decline judicially to engraft further exceptions to the statute of limitations beyond those provided by Congress”). B. Whether the IRS was compelled to surrender the debtor’s tax overpay-ments to the bankruptcy estate by 11 U.S.C. § 542(a). The trustee contends, and the bankruptcy court agreed, that it was unnecessary for him to file a refund claim under I.R.C. § 6511 because the automatic turnover provision in the Bankruptcy Code required the IRS to return Armstrong’s pre-filing overpayment to the trustee as soon as the amount of overpayment became certain. According to this theory, the IRS would have had to turn over the overpayment when it entered the stipulation with Armstrong in 1995. This is so even though I.R.C. § 6511(b)(2)(A) states in mandatory terms that “no credit or refund shall be allowed” unless the limitations period contained in that section is adhered to. The argument on this issue appears to present a question of first impression in this Circuit and on which there is no direct instruction from the Supreme Court. We must base our decision upon the statutory language in question therefore, looking to the interaction of the statutory schemes apparently in conflict. One basic principle of statutory construction is that where two statutes appear to conflict, the statute addressing the relevant matter in more specific terms governs. See Crawford Fitting Co. v. J.T. Gibbons, Inc. 482 U.S. 437, 445, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987) (superseded by statute on other grounds); Mennor v. Fort Hood Nat’l Bank, 829 F.2d 553, 557 (5th Cir.1987). A similar principle applies to interpretation of various sections of the same enactment. A provision must be considered in context, see Deal v. United States, 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993); Reich v. Arcadian Corp., 110 F.3d 1192, 1195-96 (5th" }, { "docid": "3097889", "title": "", "text": "See Gouin v. United States, 1988 WL 126566, 62 A.F.T.R.2d 88-5654, 88-2 USTC ¶ 9534 (D.Mass.1988) (court rejected taxpayers’ argument that they were entitled to credit for excess taxes withheld from wages on theory that such sums constituted “deposits” that could be applied to their liability for previous tax year, since they did not make any payments within 3-year period immediately preceding filing of belated return claiming refund). The Doctrine of Equitable Estoppel Cannot be Used to Extend or Toll the Time to File a Tax Refund Claim 35. In Brockamp, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818, the Supreme Court addressed the following specific issue: “Can courts toll, for nonstatutory equitable reasons, the statutory time (and related amount) limitations for filing tax refund claims set forth in § 6511 of the Internal Revenue Code of 1986?” Id. at 348, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818. The Court answered that question “no” because Congress did not intend equitable doctrines to apply to the time limits of 26 U.S.C. § 6511. 36. The equitable estoppel argument made by plaintiff herein is similar to the equitable tolling claim at issue in Brock-amp. 37. In cases decided subsequent to Brockamp, the courts uniformly have held that equitable principles, including the doctrine of equitable estoppel, cannot toll statutes of limitation in tax refund suits. See RHI Holdings, Inc. v. United States, 142 F.3d 1459 (Fed.Cir.1998) (applying Brockamp and finding that two year limitations period for tax refund claims when taxpayer files waiver of notice of disallowance, 26 U.S.C. § 6532(a)(3), does not contain implied exception that would allow United States to be estopped from asserting statute of limitations); Thomasson v. United States, 1997 WL 220321, *4, 79 A.F.T.R.2d (RIA) 97-2678, 97-1 U.S.T.C. (CCH) ¶ 50,430 (N.D.Cal.1997) (court dismissed refund suit, as untimely filed, although IRS agents erroneously informed taxpayer’s accountant during 2-year period for filing suit, 26 U.S.C. § 6532(a)(1), that IRS would issue refund to taxpayer although exact amount had not been determined, since Brockamp “foreclosed all equitable exceptions to the limitations period provided in § 6511”); Brummett" }, { "docid": "12671457", "title": "", "text": "same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver.”). While the Court stressed that it sought to create a single rule applicable to a wide variety of statutory circumstances, see id. (arguing against a continuing effort to decide such questions “on an ad hoc basis”), its reasoning accepts that the availability of equitable tolling is a question of congressional intent. Accordingly, the Supreme Court in United States v. Brockamp, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997), found that Congress had exempted the government from equitable tolling in I.R.C. § 6511. The Brockamp Court echoed Irwin in phrasing the question, “Is there good reason to believe that Congress did not want the equitable tolling doctrine to apply [against the government]?” Id. at 851. In answering “yes,” for § 6511, the Court emphasized two factors. First, § 6511’s limitations period was set forth “in a highly detailed technical manner that linguistically speaking, cannot easily be read as containing implicit exceptions.” Id. at 851. Second, given the large number of tax returns and refunds processed by the IRS, “[t]he nature and potential magnitude of the administrative problem suggest that Congress decided to pay the price of occasional unfairness in individual cases (penalizing a taxpayer whose claim is unavoidably delayed) in order to maintain a more workable tax enforcement system.” Id. at 852. Two circuits have addressed the equitable tolling issue under the FTCA. In Schmidt, the district court decided a disputed fact in dismissing a claim as time barred. The Schmidt court concluded, without repair to the language or history of the FTCA, that Irwin necessarily meant that the statute was not jurisdictional, hence the district court lacked the authority to find jurisdictional facts. See 933 F.2d at 640. Glarner v. United States, 30 F.3d 697 (6th Cir.1994), followed Schmidt, allowing equitable tolling. The Sixth and Eighth Circuits arrived at the same result that we will reach, but their reasoning was flawed. Both were decided after Irwin but before Brockamp. Both the Schmidt and Glarner courts seemed to believe that" }, { "docid": "19369568", "title": "", "text": "suit as provided for in Section 6632(a)(2). Therefore, the October 2007 letter did not extend the time for filing suit beyond two years of the mailing date of the April 2006 letter. II. This Court Is Not Permitted to Grant an Equitable Exception to the Two-Year Statute of Limitations Contained in Section 6532(a)(1). As this court concludes today that there is no statutory or regulatory exception that would permit the plaintiff to file suit more than two years after the mailing date of the April 2006 letter, only an equitable exception, if available, would permit this court to hear the plaintiffs complaint. Unfortunately for the plaintiff, no such equitable exception is permitted by law. In United States v. Brockamp, 519 U.S. 347, 348, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997), the Supreme Court considered whether courts may toll, “for nonstatutory equitable reasons, the statutory time ... limitations for filing tax refund claims set forth in [26 U.S.C.] § 6511 [(1994) (“Section 6511”) J” and found that they could not. While the Court noted that “[o]rdinarily limitations statutes use fairly simple language, which one can often plausibly read as containing an implied ‘equitable tolling’ exception,” it noted that “[Section] 6511 uses language that is not simple” and that “[i]t sets forth its limitations in a highly detailed technical matter, that, linguistically speaking, cannot easily be read as containing implicit exceptions.” Brockamp, 519 U.S. at 350, 117 S.Ct. 849. The Court also noted that “[Section] 6511 reiterates its limitations several times in several different ways.” Id. at 351, 117 S.Ct. 849. The Court concluded that “Section 6511’s detail, its technical language, the iteration of the limitations in both procedural and substantive forms, and the explicit listing of exceptions, taken together, indicate to us that Congress did not intend courts to read other unmentioned, open-ended, ‘equitable’ exceptions into the statute that it wrote.” Id. at 352, 117 S.Ct. 849; see also John R. Sand & Gravel, 552 U.S. at 133-34, 128 S.Ct. 750 (citing Broekamp and describing the statute of limitations contained in Section 6511 as “jurisdictional” and “limiting the scope of a" }, { "docid": "15702583", "title": "", "text": "§ 6511(c) supplies an addendum to the filing deadlines: in the ease of an agreement to extend the time for additional assessments, the time for filing will not expire before six months after the termination or expiration of the agreement. Thus, according to § 6511,. the time for filing a full refund claim in the present case would expire six months after the termination of the agreement contained in Form 872A, or July 2, 1991. Under § 6511, Armstrong could file a refund claim after that date in order to recover any taxes paid within the two years prior to filing the claim. The bankruptcy court construed Armstrong’s 1993 filing of an adversary proceeding as a an informal refund claim and therefore awarded him the taxes paid within two years prior to that filing. The trustee contends that while the statute of limitations for filing a full refund claim may have run for Armstrong individually on July 2, 1991, the automatic stay imposed at the beginning of a bankruptcy proceeding allows a trustee to file for a refund of pre-petition taxes at any time during the pendency of the bankruptcy case. The automatic stay provision in the Bankruptcy Code, 11 U.S.C. § 362, would thus create an implied exception to the time limits set out in I.R.C. § 6511. We agree with the United States and the bankruptcy court that the trustee’s claim was not timely under I.R.C. § 6511. Section 6511 contains very specific terms dictating the circumstances under which a refund claim may be filed. Other terms tolling the statute should not be implied into it without evidence of legisla tive intent. See United States v. Brockamp, 519 U.S. 347, 350-53, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997) (holding that no implied equitable tolling term may be read into § 6511 because the language of the statute and Congressional intent are to the contrary); see also Firsdon v. United States, 95 F.3d 444 (6th Cir.1996)(holding that the statute of limitations contained in § 6511 is not tolled during the pendency of the bankruptcy suit). The trustee did not" }, { "docid": "15702582", "title": "", "text": "(5th Cir.1997). A. Whether the trustee’s refund claim ivas timely. The IRS argues and the bankruptcy court found that the trustee’s refund claim, filed in 1996, was outside the statute of limitations established by I.R.C. § 6511. The trustee argues that the claim was timely because the automatic stay provision in the Bankruptcy Code in combination with the agreement between Armstrong and the IRS to extend the time for assessment of 1984 taxes acted to toll the statute of limitations. We agree with the IRS and the bankruptcy court on this point and find that the trustee’s claim was not timely under I.R.C. § 6511. I.R.C. § 6511 dictates the time frame for filing of refund claims. I.R.C. § 6511(a) provides that a refund claim must be filed within three years of the time the return was filed or within two years from the time the tax was paid. I.R.C. § 6511(b)(1) provides that no refund shall be allowed or made unless a claim was filed within the limits set up by § 6511(a). I.R.C. § 6511(c) supplies an addendum to the filing deadlines: in the ease of an agreement to extend the time for additional assessments, the time for filing will not expire before six months after the termination or expiration of the agreement. Thus, according to § 6511,. the time for filing a full refund claim in the present case would expire six months after the termination of the agreement contained in Form 872A, or July 2, 1991. Under § 6511, Armstrong could file a refund claim after that date in order to recover any taxes paid within the two years prior to filing the claim. The bankruptcy court construed Armstrong’s 1993 filing of an adversary proceeding as a an informal refund claim and therefore awarded him the taxes paid within two years prior to that filing. The trustee contends that while the statute of limitations for filing a full refund claim may have run for Armstrong individually on July 2, 1991, the automatic stay imposed at the beginning of a bankruptcy proceeding allows a trustee to file" }, { "docid": "13541100", "title": "", "text": "have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights. Id. at 96, 111 S.Ct. 453. What makes the instant case difficult is that Brewer did “actively pursue his judicial remedies by filing a defective pleading during the statutory period.” Id. On September 10, 2003, Brewer filed a lawsuit with the Court regarding the same operative facts, against the federal government. Brewer v. Department of Treasury, CV203-141 (S.D.Ga.2003). On August 19, 2004, that case was terminated on the United States’ unopposed motion to dismiss. Under Irwin, it would seem that Brewer has a meritorious argument that he should be entitled to proceed based on the doctrine of equitable tolling. However, Irwin was not the final word on the matter. In 1997, the Supreme Court had an opportunity to examine an equitable tolling argument in the context of the statute of limitations requirement for administrative relief from the IRS, codified at 26 U.S.C. § 6511. United States v. Brockamp, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818. Under § 6511(a), an administrative claim for a refund must be filed with the IRS within three years of filing the return, or two years from payment of the tax, whichever is later. As an opening qualifier, the Brockamp Court only assumed, arguendo, that a tax refund suit and a private suit for restitution are “sufficiently similar” to ask “Irwin’s negatively phrased question: Is there good reason to believe that Congress did not want the equitable tolling doctrine to apply?” Id. at 350, 117 S.Ct. 849. The Court then cited to precedent which had distinguished common law suits against a tax collector from actions in assumpsit for money had and received, rendering the supposition that Irwin applies to tax suits doubtful at the outset. After reviewing the statute, Justice Breyer, writing for a unanimous court, found that § 6511 contains no implied equitable tolling exception. Justice Breyer explained that “Section 6511 sets forth its time limitations in unusually emphatic form.” Id. Moreover, Justice Breyer pointed out that the tax law" }, { "docid": "16193115", "title": "", "text": "pleading during the statutory period” or “where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass,” the Court explained that the doctrine had been applied “sparingly” by federal courts in the past and would not in any event be applied “to what is at best a garden variety claim of excusable neglect.” Irwin, 498 U.S. at 96, 111 S.Ct. 453. In subsequent cases, the Supreme Court has made clear that Irwin did not mean that all limitations periods governing suits against the government would be subject to equitable tolling. In both United States v. Brockamp, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997), and United States v. Beggerly, 524 U.S. 38, 48, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998), the Court rejected arguments that equitable tolling was available under the particular statutes of limitation at issue in those cases. In Brockamp, the Court emphasized the “unusually emphatic” language of section 6511 of the Internal Revenue Code of 1986, the statute limiting the period for filing tax refund claims. Section 6511, the Court explained, restates the limitations period “several times in several different ways,” 519 U.S. at 351, 117 S.Ct. 849, and “sets forth its limitations in a highly detailed technical manner that, linguistically speaking, cannot easily be read as containing implicit exceptions.” Id. at 350, 117 S.Ct. 849. Moreover, the Court noted that section 6511 contained explicit exceptions to its basic time limits, which did not include equitable tolling. Id. at 351, 117 S.Ct. 849. Finally, the Court explained that the underlying subject matter — tax collection — is inconsistent with a system of case-specific exceptions for equitable tolling, which could create significant administrative difficulties. Id. at 352, 117 S.Ct. 849. In summary, the Court stated: “Section 6511’s detail, its technical language, the iteration of the limitations in both procedural and substantive forms, and the explicit listing of exceptions, taken together, indicate to us that Congress did not intend courts to read,other unmentioned, open-ended, ‘equitable’ exceptions into the statute that it wrote.” Id. In Beggerly, the Court similarly rejected" }, { "docid": "2119055", "title": "", "text": "government should be estopped from relying on the filing deadline because of DOL’s slow processing of her workers’ compensation claim and its purported contribution to her failure to meet the statute’s filing deadline. Def.’s Mot. at 11. The United States also disputes plaintiffs contention that the IRS improperly failed to inform her about her right to protect her potential refund by filing a protective claim during the pendency of her workers’ compensation appeal. To show that equitable relief would be improper, the government cites the Supreme Court’s decision in United States v. Brockamp, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997). Defendant points out that, in Brockamp, the Supreme Court held explicitly that “Section 6511’s detail, its technical language, the iteration of the limitations in both procedural and substantive forms, and the explicit listing of exceptions, taken together, indicate to us that Congress did not intend courts to read other unmentioned, open-ended, ‘equitable’ exceptions into the statute that it wrote.” Def.’s Mot. at 12 (quoting Brockamp, 519 U.S. at 352, 117 S.Ct. 849). Defendant is undoubtedly correct that the applicable precedents bar equitable tolling of the statute of limitations set forth in IRC § 6511. The Supreme Court has stated clearly that no such tolling is permitted. Brockamp, 519 U.S. at 348, 117 S.Ct. 849 (“Can courts toll, for nonstatutory equitable reasons, the statutory time ... limitations for filing tax refund claims set forth in § 6511 of the Internal Revenue Code of 1986? We hold that they cannot.”). Further, this court and others have held repeatedly that, under the reasoning of Brock-amp, § 6511(a)’s filing deadline may not be equitably tolled. See Wadlington v. United States, 68 Fed.Cl. 145 (2005); Sullivan v. United States, 46 Fed.Cl. 480 (2000) (holding that Brockamp’s bar on equitable tolling of § 6511’s filing deadline blocked an untimely refund claim filed by a plaintiff in response to the Veterans Administration’s award of nontaxable disability benefits retroactive to eight years before its decision); Brummett v. United States, 218 F.Supp.2d 1253, 1258-59 (D.Or.2002) (holding that, under Brockamp, no equitable tolling of the filing deadline" }, { "docid": "1333753", "title": "", "text": "limitations statutes use fairly simple language, which one can often plausibly read as containing an implied “equitable tolling” exception. See, e.g., 42 U.S.C. § 2000e-16(c) (requiring suit for employment discrimination to be filed “[wjithin 90 days of receipt of notice of final [EEOC] action”). But § 6511 uses language that is not simple. It sets forth its limitations in a highly detailed technical manner, that linguistically speaking, cannot easily be read as containing implicit exceptions. Id. The Court also noted that: Section 6511 sets forth explicit exceptions to its basic time limits, and those very specific exceptions do not include “equitable tolling.” See [26 U.S.C.] § 6511(d) (establishing special time limit rules for refunds related to operating losses, credit carrybacks, foreign taxes, self-employment taxes, worthless securities, and bad debts). Id. at 351-52, 117 S.Ct. 849. The Brock-amp Court ultimately held that Congress did not intend to permit equitable tolling with respect to section 6511: To read an “equitable tolling” provision into these provisions, one would have to assume an implied exception for tolling virtually every time a number appears. To do so would work a kind of linguistic havoc. Moreover, such an interpretation would require tolling, not only procedural limitations, but also substantive limitations on the amount of recovery — a kind of tolling for which we have found no direct precedent. Section 6511’s detail, its technical language, the iteration of the limitations in both procedural and substantive forms, and the explicit listing of exceptions, taken together indicate to us that Congress did not intend courts to read other unmentioned, open ended, “equitable” exceptions into the statute that it wrote. There are no counter-indications. Id. at 352, 117 S.Ct. 849. Reinforcing this conclusion, the Court explained that “[t]ax law, after all, is not normally characterized by case specific exceptions reflecting individualized equities.” Id. The Brockamp Court further pointed out that: The nature of the underlying subject matter — tax collection — underscores the linguistic point. The IRS processes more than 200 million tax returns each year. It issues more than 90 million refunds. See Dept, of Treasury, Internal Revenue Service," }, { "docid": "15702581", "title": "", "text": "case are not in dispute. The primary issues on appeal are whether the trustee’s refund claim was in fact timely given the automatic stay provision in the Bankruptcy Code and whether the automatic turnover provision at 11 U.S.C. § 542(a) obviated the need for a refund claim once the amount of the debtor’s tax overpayment had become certain. Appel-lee raises the additional issues of whether the filing of a proof of claim for 1984 taxes by the IRS exempted him from having to file a refund claim and whether his refund claim was a compulsory counterclaim and therefore not barred by any statute of limitations. We apply the same standards of review to the bankruptcy court’s findings of fact and conclusions of law as those applied by the district court. See Kennard v. MBank Waco, N.A. (In re Kennard), 970 F.2d 1455, 1457 (5th Cir.1992). Because the issues on this appeal are questions of law, we review the judgment of the bankruptcy court de novo. See Traina v. Whitney Nat’l Bank, 109 F.3d 244, 246 (5th Cir.1997). A. Whether the trustee’s refund claim ivas timely. The IRS argues and the bankruptcy court found that the trustee’s refund claim, filed in 1996, was outside the statute of limitations established by I.R.C. § 6511. The trustee argues that the claim was timely because the automatic stay provision in the Bankruptcy Code in combination with the agreement between Armstrong and the IRS to extend the time for assessment of 1984 taxes acted to toll the statute of limitations. We agree with the IRS and the bankruptcy court on this point and find that the trustee’s claim was not timely under I.R.C. § 6511. I.R.C. § 6511 dictates the time frame for filing of refund claims. I.R.C. § 6511(a) provides that a refund claim must be filed within three years of the time the return was filed or within two years from the time the tax was paid. I.R.C. § 6511(b)(1) provides that no refund shall be allowed or made unless a claim was filed within the limits set up by § 6511(a). I.R.C." }, { "docid": "20360952", "title": "", "text": "requirement is contained in I.R.C. § 6532(a)(2), which allows for extension of time for filing suit when agreed to in writing by the taxpayer and “a district director, a director of an internal revenue service center, or an assistant regional commissioner” of the IRS. 26 C.F.R. § 301.6532-l(b). The IRS’s mere consideration or reconsideration of a taxpayer’s claim after mailing a notice of disallowance does not extend the limitations period for filing suit. I.R.C. § 6532(a)(4). Separate from the time for filing a suit in court, the Code also strictly limits the time within which a taxpayer may file an administrative claim for refund with the IRS in the first instance. The Supreme Court has recognized that the time limit for filing such an administrative refund claim with the IRS is established by I.R.C. § 6511(a). Clintwood, 553 U.S. at 4, 128 S.Ct. 1511. A court may not equitably toll the statutory time limitations set forth in I.R.C. § 6511 for filing administrative tax refund claims, United States v. Brockamp, 519 U.S. 347, 348, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997), but the Code does provide certain statutory bases for tolling the time for filing administrative tax refund claims. For instance, under I.R.C. § 6511(h), the statute of limitations for filing a claim with the IRS may be suspended if (subject to certain conditions) a taxpayer is deemed “financially disabled” and no other person is authorized to act on his behalf. D. The Plaintiffs Claim for Refund of Income Taxes Paid for 1999 and 2000 Are Time-Barred under I.R.C. § 6532(a) The government has moved for dismissal of the plaintiffs refund claims for tax years 1999 and 2000 for lack of subject matter jurisdiction because, regardless of whether the plaintiff filed a timely claim for refund with the IRS, the plaintiff did not file his complaint with this court within two years of the IRS’s disallowance of those claims in November 2005, as required by I.R.C. § 6532(a)(1). The plaintiff contends that the two-year limitations period of I.R.C. § 6532(a)(1) for filing suit in this court was extended pursuant to" }, { "docid": "13541101", "title": "", "text": "S.Ct. 849, 136 L.Ed.2d 818. Under § 6511(a), an administrative claim for a refund must be filed with the IRS within three years of filing the return, or two years from payment of the tax, whichever is later. As an opening qualifier, the Brockamp Court only assumed, arguendo, that a tax refund suit and a private suit for restitution are “sufficiently similar” to ask “Irwin’s negatively phrased question: Is there good reason to believe that Congress did not want the equitable tolling doctrine to apply?” Id. at 350, 117 S.Ct. 849. The Court then cited to precedent which had distinguished common law suits against a tax collector from actions in assumpsit for money had and received, rendering the supposition that Irwin applies to tax suits doubtful at the outset. After reviewing the statute, Justice Breyer, writing for a unanimous court, found that § 6511 contains no implied equitable tolling exception. Justice Breyer explained that “Section 6511 sets forth its time limitations in unusually emphatic form.” Id. Moreover, Justice Breyer pointed out that the tax law “is not normally characterized by case specific exceptions reflecting individualized equities.” Id. at 352, 117 S.Ct. 849. Section 651 l’s detail, its technical language, the iteration of the limitations in both procedural and substantive forms, and the explicit listing of exceptions, taken together, indicate to us that Congress did not intend courts to read other unmentioned, open-ended, ‘equitable’ exceptions into the statute[J Id. Justice Breyer also expressed concern over the potential administrative burden on the IRS if courts allowed late claims to be filed and possibly litigated. Id. In RHI Holdings, Inc. v. United States, the Federal Circuit Court of Appeals applied Brockamp’s analysis of § 6511’s statute of limitations to the analogous statute of limitations found in § 6532(a), and found that there was no implied right of equitable estoppel. The court reasoned that § 6532 “sets forth its limitations in a detailed, technical manner.” 142 F.3d 1459, 1462 (Fed.Cir.1998). The RHI Holdings court also noted that § 6532(a)(4) explicitly prohibits equitable considerations, based on actions by the IRS, from extending the limitations period" }, { "docid": "15702597", "title": "", "text": "file a pleading, etc. for the later of the expiration of the statute of limitations or two years after filing for bankruptcy for commencing an action under § 108(a) and for sixty days after filing for the actions indicated by § 108(b). The trustee’s adversary proceeding, commenced in 1997, occurred after both the expiration of the statute of limitations contained in I.R.C. § 6511 and any extension of time granted by Bankr.Code § 108. (Bankr.Code § 108 does not apply to the filing of administrative claims under the Internal Revenue Code. See TLI, Inc. v. United States, 100 F.3d 424, 427 (5th Cir.1996)). . The Eighth Circuit recently considered a case raising the question of whether a bankruptcy trustee must comply in all circumstances with I.R.C. §§ 6511 and 7422. See United States v. Kearns, 177 F.3d 706 (8th Cir.1999). The Eighth Circuit panel held that §§ 6511 and 7422 did not deprive a bankruptcy court of jurisdiction to determine tax liability for a particular year where a live proof of claim by the IRS was before it and consideration of an alleged later repayment of embezzled funds was necessary to decide the validity of the proof of claim. While we express no opinion on our sister court’s determination of the merits of that case, we do note that its holding was limited to its narrow set of facts. More importantly, there was a live claim by the IRS before the bankruptcy court and according to the panel’s interpretation of the facts, it would be “without purpose and irrational” to deprive the bankruptcy court of jurisdiction to consider the deduction claims. See id. at 711. The decision did not address the relationship between I.R.C. § 6511 and Bankr.Code § 542(a). The Eighth Circuit’s holding, thus limited to its unique facts, does not inform our resolution of the case before us. . 11 U.S.C. § 542(a) provides: “Except as provided in subsection (c) or (d) of this section, an entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or" }, { "docid": "15702588", "title": "", "text": "Cir.1997), and the more specific provision within a statute prevails. See Nobleman v. American Sav. Bank (In re Nobleman), 968 F.2d 483, 487-88 (5th Cir.1992). We can only reason by analogy from decided cases touching on the refund provisions of § 6511 and the automatic turnover provision of 11 U.S.C. § 542(a). The bankruptcy court held that normally, the trustee would be bound by the statute of limitations for refund claims under I.R.C. § 6511 but that where, as here, the amount of overpayment has been agreed upon the refund becomes “liquidated” and, as a sum certain paid in error by the debtor before filing for bankruptcy, must be turned over to the trustee automatically as property of the estate under 11 U.S.C. § 542(a). While this is admittedly a close case and without directly controlling precedent, we disagree with the bankruptcy court’s holding that a stipulation by the government to the amount of overpayment exempts the trustee from the filing requirements in I.R.C. § 6511. Bankruptcy Code § 542(a) requires those in possession of property belonging to the bankruptcy estate to turn over that property to the trustee. The United States argues that § 542(a) is inapplicable to the refund amount in issue because it does not constitute property of the estate. The government contends that monies paid into the treasury become property of the United States and are therefore different from the kinds of property normally subject to turnover, in which the current possessor only holds a lien or other such interest. See United States v. Nordic Village, 503 U.S. 30, 39, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (abrogated by statute on other grounds); United States v. Whiting Pools, Inc., 462 U.S. 198, 211, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983) (seizure and levy do not determine IRS rights to the property but bring that property within the Service’s custody). We need not base our decision on whether money in the Treasury should be subject to turnover, because § 542(a) should not be construed in isolation and other portions of the bankruptcy code anticipate use of the" }, { "docid": "15702585", "title": "", "text": "file his refund claim within the parameters of § 6511 and it was therefore not timely under that section. Furthermore, the automatic stay imposed by the Bankruptcy Code does not operate in the manner that the trustee suggests. The automatic stay contained in Bankr.Code § 362 would prohibit further action against property in the bankruptcy estate by the IRS. The stay would not, however, extend indefinitely the time for a trustee to take action against the IRS. According to the trustee’s interpretation of § 362, the statute of limitations contained in I.R.C. § 6511 would be tolled until the conclusion of the bankruptcy. Yet the automatic stay is not designed to suspend all statutes of limitations applicable to the trustee, see Gordon v. Whitmore (In re Merrick), 175 B.R. 333, 337 n. 6 (9th Cir. BAP 1994) (listing cases); AMS Realty, Inc. v. Too (In re AMS Realty, Inc.), 114 B.R. 229 (Bankr.C.D.Cal.1990), and the trustee points to no controlling authority showing that I.R.C. § 6511, in particular, should be overridden by Bankr.Code § 362. In absence of such a demonstration, we conclude that Bankr.Code § 362 does not toll the statute of limitations for the filing of a refund claim by a bankruptcy trustee under I.R.C. § 6511. See Bugge v. United States (In re Bugge), 99 F.3d 740, 745 (5th Cir.1996) (“We decline judicially to engraft further exceptions to the statute of limitations beyond those provided by Congress”). B. Whether the IRS was compelled to surrender the debtor’s tax overpay-ments to the bankruptcy estate by 11 U.S.C. § 542(a). The trustee contends, and the bankruptcy court agreed, that it was unnecessary for him to file a refund claim under I.R.C. § 6511 because the automatic turnover provision in the Bankruptcy Code required the IRS to return Armstrong’s pre-filing overpayment to the trustee as soon as the amount of overpayment became certain. According to this theory, the IRS would have had to turn over the overpayment when it entered the stipulation with Armstrong in 1995. This is so even though I.R.C. § 6511(b)(2)(A) states in mandatory terms that “no" } ]

[ { "docid": "23354623", "title": "", "text": "Rule 403. Nor was the evidence of prior crimes too remote to be used during LeCroy’s carjacking trial. This court has previously upheld the admission of Rule 404(b) evidence that occurred more than 15 years before the charged offense. United States v. Lampley, 68 F.3d 1296, 1300 (11th Cir.1995); United States v. Pollock, 926 F.2d 1044, 1048 (11th Cir.1991). Moreover, in this case the significance of the ten-year time period between the previous and instant crimes is diminished because LeCroy was incarcerated for most of that time, and because the instant crime was committed approximately six weeks after his release from prison. Therefore, we discern no abuse of discretion in the district court’s admission of the evidence in question. F. Police Testimony Regarding the Knife and Blood Pattern. At trial, the government called Georgia Bureau of Investigation Agent Jeff Branyon, a crime scene specialist who collected evidence at Tiesler’s home and in her car when LeCroy was arrested near the Canadian border. Branyon testified that a blood stain on the back of Tiesler’s shirt appeared to have been made by someone wiping a bloody knife off on the shirt. The defense claims that (1) Bra-nyon gave expert testimony without proper notice under Rule 16 of the Federal Rules of Criminal Procedure, (2) the government purposefully failed to comply with Rule 16 requirements, and (3) thus the testimony about the blood pattern should' have been excluded. Rule 701 of the Federal Rules of Evidence permits opinion testimony by lay witnesses. To qualify, a witness’ opinion is limited “to those opinions and inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.R.Evid. 701. It is clear that Agent Branyon’s testimony qualified under Rule 701 and did not constitute expert opinion under Rule 702. Just because Agent Branyon’s position and experience could have qualified him for expert witness status does not mean that any testimony" } ]

[ { "docid": "13794222", "title": "", "text": "based on the record before it, it could not conclude that the stops “in the affidavit [were] the same stops that Perkins [was] talking about.” In the absence of proof that Perkins’ testimony was based on information gleaned from the allegedly unlawful stops, Kornegay failed to establish the nexus between the claimed Fourth Amendment violation and the evidence he sought to suppress. See Nava-Ramirez, 210 F.3d at 1131-32 (affirming the denial of a motion to suppress because the defendant failed to show a connection between the allegedly unconstitutional seizure and the evidence he sought to suppress). B. Lay Testimony Kornegay next contends that the district court erred by admitting Detective Perkins’ identification testimony as a lay opinion under Fed.R.Evid. 701. We review the district court’s ruling for a manifest abuse of discretion. See United States v. Jackman, 48 F.3d 1, 4 (1st Cir.1995). Rule 701 allows for the admission of lay opinion testimony that is “(a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” Kornegay challenges Perkins’ testimony under both prongs. He claims that Perkins’ observations during the summer of 2001 were so limited in duration that the in-court identification was not rationally based on Perkins’ perception. He also contends that the testimony was unnecessary because Perkins’ observations were brief and the jury had sufficient other evidence of identity (ie., photographs and the videotape of the crime) to make the identification. Based on Perkins’ testimony, it is clear that the identification was based upon Perkins’ personal observation and the recollection of concrete facts. Perkins described the encounters with Kornegay in detail and provided specific recollections about Kornegay’s distinguishing features. This testimony is adequate to establish that the identification was rationally based on Perkins’ perception. The next question is whether Perkins’ testimony was helpful to the jury. Here the extent of Perkins’ observation is relevant. As we explained in Jackman, identification testimony is helpful to the jury “when the witness possesses sufficiently relevant familiarity with the defendant that the jury cannot also" }, { "docid": "22588287", "title": "", "text": "insufficient to prove that Perkins caused “bodily injury” to Koonce. We address each of these arguments in turn. We typically review for abuse of discretion a district court’s evidentiary rulings. United States v. Gray, 405 F.3d 227, 238 (4th Cir.2005). When a party fails to object to the admission of evidence, however, we review the admission for plain error. United States v. Chin, 83 F.3d 83, 87 (4th Cir.1996). Perkins first contends that the district court erred in admitting without a proper foundation the opinion testimony of Officers House and Fisher, Sergeants Jones and Waldron, and Corporal Allen, none of whom were qualified as expert witnesses. Because Perkins did not object at trial to any of the testimony on this ground, we review for plain error. Federal Rule of Evidence 701 permits a lay witness to give opinion testimony that is “(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.R.Evid. 701. Because Rule 701 “does not distinguish between expert and lay witnesses, but rather between expert and lay testimony,” Fed.R.Evid. 701 advisory committee’s note, the line between lay opinion testimony under Rule 701 and expert testimony under Rule 702 “is a fine one,” 3 Stephen A. Saltzburg, Michael M. Martin & Daniel J. Capra, Federal Rules of Evidence Manual 701-14 (9th ed.2006). See also United States v. Ayala-Pizarro, 407 F.3d, 25, 28 (1st Cir.2005)(noting that “[t]he line between expert testimony under Fed.R.Evid. 702 ... and lay opinion testimony under Fed.R.Evid. 701 ... is not easy to draw”)(internal quotation marks omitted). As an example of the kinds of distinctions that Rule 701 makes, the Committee instructs that the rule would permit a lay witness with personal experience to testify that a substance appeared to be blood, but that it would not allow a lay witness to testify that bruising around the eyes is indicative of skull trauma. Fed.R.Evid. 701 advisory committee’s note. As helpful as" }, { "docid": "22895034", "title": "", "text": "The defendants further complain about Agent Miranda’s testimony that (1) explained his understanding of recorded telephone calls between Baker and Baker’s brother, and (2) stated that Baker’s brother used a Hamas name. The defendants contend that the above testimony was not based on the witnesses’ perception, was not helpful to the jury, and required specialized knowledge. We conclude that no reversible error occurred. We agree that some of the facts presented by the agents would not be known to an average lay person. The district court did not err by admitting the testimony, however, because the agents’ opinions were limited to their personal perceptions from their investigation of this case. See United States v. McMillan, 600 F.3d 434, 456 (5th Cir.2010). By explaining the meaning of terms as used in the conversations and documents, as well as the relationships between the people they were investigating, the agents provided the jury with relevant factual information about the investigation. See id. (lay witnesses who investigated an HMO’s financial health were permitted to testify about accounting rules, define certain terms, and report impressions of HMO’s accounting records because testimony “provided factual informa tion about the circumstances of the case” and concerned the witnesses’ investigation and “perceptions in the case”). Testimony need not be excluded as improper lay opinion, even if some specialized knowledge on the part of the agents was required, if it was based on first-hand observations in a specific investigation. For example, in United States v. Miranda, 248 F.3d 434, 441 (5th Cir.2001), we held that an FBI agent could testify under Rule 701 about the meaning and use of certain code words in the drug trade. We emphasized that the agent’s “extensive participation in the investigation of this conspiracy” allowed the agent to “form opinions” about the code words “based on his personal perceptions.” Id. (emphasis added). Similarly, in United States v. Rollins, 544 F.3d 820, 831-32 (7th Cir.2008), the Seventh Circuit found no error in a law enforcement officer’s “impression” testimony about recorded telephone calls where it was “based on his first-hand perception of the intercepted phone calls ..." }, { "docid": "22588289", "title": "", "text": "this example may be to our interpretive cause, the fine line remains. While we have noted that “[a] critical distinction between Rule 701 and Rule 702 testimony is that an expert witness must possess some specialized knowledge or skill or education that is not in possession of the jurors,” Certain Underwriters at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 203 (4th Cir.2000) (internal quotation marks omitted), we also have acknowledged that the “subject matter of Rule 702 testimony need not be arcane or even especially difficult to comprehend,” Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir.1993). The interpretive waters are muddier still: while lay opinion testimony must be based on personal knowledge, see Fed.R.Evid. 701, “expert opinions may [also] be based on firsthand observation and experience.” 29 Charles Wright & Victor Gold, Federal Practice and Procedure: Evidence § 6253 (1997 & Supp.2006). At bottom, then, Rule 701 forbids the admission of expert testimony dressed in lay witness clothing, but it “does not interdict all inference drawing by lay witnesses.” United States v. Santos, 201 F.3d 953, 963 (7th Cir.2000). Where opinion testimony focuses on the standard of the objectively reasonable officer, “it is more likely that Rule 702’s line between common and specialized knowledge has been crossed.” Kopf, 993 F.2d at 378. In Perkins’s case we conclude that the district court, although close to crossing that line, properly admitted the challenged testimony given by Officers House and Fisher. Both officers observed Perkins kick Koonce and thus testified based on their contemporaneous perceptions; as such, their testimony satisfies Rule 701’s personal knowledge requirement. See Fed.R.Evid. 701. Moreover, their observations were “common enough and require[d] such a limited amount of expertise ... that they can, indeed, be deemed lay witness opinion[s].” United States v. Von-Willie, 59 F.3d 922, 929 (9th Cir.1995). Because their testimony was framed in terms of their eyewitness observations and particularized experience as police officers, we have no trouble finding that their opinions were admissible under Rule 701. On the other hand, the “reasonableness” testimony given by Sergeants Waldron and Jones and Corporal Allen crossed the line between" }, { "docid": "22199366", "title": "", "text": "the witness’ past experiences. In Myers, the defendant, a former police officer charged with depriving arrestees of their civil rights by using a stun gun, challenged a district court’s admission of testimony that “reddish burn marks on [a victim’s] back were consistent with marks that would be left by a stun gun.” Id. at 1577. Myers argued that testimony should not have been admitted under Rule 701 because it “went beyond the everyday common knowledge of a lay person.” Id. This Court rejected his argument concluding that the witness’s “conclusion was rationally based upon his personal perception of [the victim’s] back and his nineteen years of experience on the police force.” Id. We further noted that “[t]o the extent that [the witness’s] opinion lacked a technical/medical basis, [the defendant] had the opportunity to expose this on cross-examination,” and the defendant’s “objection to the evidence goes to its weight and not its admissibility.” Id.; see also Agro Air Assocs., Inc. v. Houston Casualty Co., 128 F.3d 1452, 1455 (11th Cir.1997) (affirming the admission of lay witness opinion testimony “based on the witnesses’ personal observations and knowledge of, and experience in, the aviation industry”). Moreover, we have specifically held on a number of occasions that district courts did not abuse their discretion by permitting police officers to testify under Rule 701 about their understanding of the meaning of conversations by or with criminal defendants. For example, in United States v. Awan, we affirmed a district court’s admission of testimony by an undercover agent concerning the “meaning and import” of statements that were part of tape-recorded conversations with the defendants. 966 F.2d 1415, 1430 (11th Cir.1992). The defendants in that case argued that the jurors should have been permitted to reach their own conclusions about the meaning of the statements without the influence of the agent’s interpretation. Id. We rejected that argument after finding that the agent’s testimony was based on his perceptions of the conversations and that the testimony could have been helpful to the jury. Id. at 1430. See also United States v. Davis, 787 F.2d 1501, 1505 (11th Cir.1986) (affirming" }, { "docid": "22948726", "title": "", "text": "his experience with the Drug Enforcement Bureau, (1) it was common for drug traffickers to possess and use weapons in order to protect their drugs and to intimidate buyers; (2) the MK-11, one of the guns found in VonWillie’s bedroom, was a particularly intimidating gun and he knew of drug dealers who used that specific weapon; and (8) drug traffickers commonly kept a weapon near their drugs. These observations are common enough and require such a limited amount of expertise, if any, that they can, indeed, be deemed lay witness opinion. We review the admission of lay opinion testimony deferentially, although here, too, our cases describe our standard of review in different ways. See United States v. Simas, 937 F.2d 459, 464 (9th Cir.1991) (reviewing for “manifest error”); United States v. Juvenile Male, 864 F.2d 641, 647 (9th Cir.1988) (reviewing for “clear abuse of discretion”). Again, we will characterize the standard as “abuse of discretion,” and we hold that the district court did not err under this standard by admitting Symes’ testimony. Symes’ testimony was rationally based on his perceptions during the search at VonWillie’s residence and his perceptions during prior drug investigations. See Fed.R.Evid. 701(a). His testimony also was helpful to the jury’s “determination of a fact in issue,” see Fed.R.Evid. 701(b), namely whether VonWillie was involved in drug trafficking and whether he used a firearm “in relation to” a drug offense. See Simas, 937 F.2d at 464-65 (the opinion of a law enforcement officer, who testified as a lay witness, “that the defendant’s activities match ‘the usual criminal modus operandi,’ ” is helpful to the jury and permissible under Rule 701(b)) (citation omitted). VI. SEVERANCE OF COUNTS IN THE INDICTMENT VonWillie argues that the district court should have severed the counts of the indictment pursuant to Fed.R.Crim.P. 8(a) and 14. We disagree. A. Misjoinder Under Rule 8(a) Rule 8(a) permits an indictment to charge multiple offenses as long as the offenses “are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or" }, { "docid": "13326452", "title": "", "text": "drugs); United States v. Dillard, 78 Fed. Appx. 505, 514-15 (6th Cir.2003) (affirming defendant’s sentence where officer testified that amount of drugs was more consistent with distribution than with personal use); United States v. Quinn, 230 F.3d 862, 866 (6th Cir.2000) (affirming defendant’s sentence where officer testified that amount of drugs was more consistent with distribution than with personal use). In addition, we find that the district court did not err in allowing Agent Ledford to testify that firearms play a role in drug trafficking activity. We recently held admissible an officer’s testimony that large-capacity pistols are commonly used in drug trafficking. See Thomas, 99 Fed. Appx. at 669. In that case, we observed that “[m]ost courts have taken a very tolerant view of the admissibility of expert testimony linking the presence of firearms to drug trafficking activities.” Id. (citing United States v. Allen, 269 F.3d 842, 845-46 (7th Cir.2001) (upholding admission of police expert testimony that it is common for drug dealers to keep weapons to protect themselves and their drugs) and United States v. Jackson, 67 F.3d 1359, 1366 (8th Cir.1995) (same)). In addition, in United States v. Pearce, we held admissible an officer’s testimony that handguns found inside a suspicious building were typical of guns found in crack houses. 912 F.2d 159, 163 (6th Cir.1990). Similarly, the district court in this case did not plainly err in allowing Agent Ledford to testify that “drug dealers carry firearms for intimidation and protection of their, product.” Last, Swafford argues that the district court erred in admitting the testimo ny of Detective Smith who identified a name handwritten on a business card found in Swafford’s wallet as that of a known drug dealer and who stated that two dollar amounts written on the card corresponded to the cost of certain quantities of methamphetamine. Swafford argues that this testimony was impermissi-bly based on hearsay and speculation. Swafford did not object to the admission of this testimony, contemporaneously or otherwise, although later in the trial he objected to the admission of the business card on relevancy grounds. We therefore review for plain" }, { "docid": "23041990", "title": "", "text": "methods of operation unique to the drug distribution business, as such testimony is often helpful in assisting the trier of fact understand the evidence.” United States v. Washington, 44 F.3d 1271, 1283 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 2011, 131 L.Ed.2d 1010 (1995); see United States v. Fleishman, 684 F.2d 1329, 1335-36 (9th Cir.) (finding no error in admission of agent’s testimony that defendant acted as a “lookout” for drug transaction), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982). The record reflects that both testifying officers were experienced in investigating narcotics trafficking and drug-related crimes. Because of their experiences, the officers were familiar with certain conduct and methods of operation unique to the drug distribution business, including the methods used by drug dealers to protect their illegal investments. The first officer testified that, in his opinion, Bonner’s and Crane’s actions indicated that they were guarding the car. This type of testimony is permissible because it is based on specialized knowledge, and is admitted to aid the jury in understanding a fact in issue — whether Bonner’s presence with the drugs was innocent or not. The second officer testified that, based on his experience, a person transporting $30,000 worth of crack cocaine and multiple firearms would not allow a complete outsider to ride in the car. This testimony was also permissible opinion testimony, based on the officer’s spe cialized knowledge. It aids the jury in understanding the significance of Bonner’s presence in a car laden with narcotics and weapons. Fed.R.Evid. 702; Washington, 44 F.3d at 1283. Accordingly, we hold that the district court did not abuse its discretion in admitting the officers’ opinion testimony into evidence. V Anderson argues that the district court misapplied the Sentencing Guidelines in calculating his base offense level. Anderson maintains that the district court erred in attributing to him the drugs seized from the Buchanan residence in Houston. A district court's findings about the quantity of drugs upon which a sentence should be based are factual findings, which we review for clear error. United States v. Palomo, 998 F.2d" }, { "docid": "21155990", "title": "", "text": "in part on first-hand experience — -principally his prior experiences at the Law Office and his conversation with Kaplan — his response was extremely vague. Thus, Gaikovich’s testimony failed to show that his opinion as to Kaplan’s knowledge was rationally based on facts he had observed. We are therefore unable to conclude, as we must under Rule 701, that the opinion he offered was rationally based on his own perceptions. See Rea, 958 F.2d at 1216 (“When a witness has not identified the objective bases for his opinion, the proffered opinion obviously fails completely to meet the requirements of Rule 701 ... because there is no way for the court to assess whether it is rationally based on the witness’s perceptions .... ”). We applied this requirement to similar facts in Rea, and observed that lay opinion testimony regarding a defendant’s knowledge will, in most cases, only satisfy the rationally-based requirement if the witness has personal knowledge of one or more “objective factual bases from which it is possible to infer with some confidence that a person knows a given fact ... including] what the person was told directly, what he was in a position to see or hear, what statements he himself made to others, conduct in which he engaged, and what his background and experience were.” 958 F.2d at 1216. Because the Government did not lay an adequate foundation, Gaikovich’s testimony expressing his opinion as to Kaplan’s knowledge was not admissible. Accordingly, having found that Gaiko-vich’s lay opinion testimony does not satisfy Rule 701, we conclude that the district court erred in admitting it. B. Admission of Gaikovich’s additional testimony regarding his and others’ knowledge Kaplan asserts that it was error for the district court to admit Gaikovich’s additional testimony regarding Gaikovich and others’ knowledge of the fraud as circumstantial evidence of Kaplan’s knowledge. Specifically, Gaikovich was permitted to testify that (1) when he first saw the building in which the Law Office was located, he thought, “[t]his is where I am going to get arrested,” JA 84; (2) everyone he spoke with told him not to buy" }, { "docid": "22189684", "title": "", "text": "injection of allegedly inadmissible evidence is attributable to defense, defendant may not claim on appeal that its introduction constitutes reversible error); United States v. Parikh, 858 F.2d 688, 695 (11th Cir.1988) (holding that admission of improper testimony “when [government witness was] responding to an inquiry by defense counsel, creates ‘invited error’ ”). Sarras’s second claim about Ortiz is that the district court erred in permitting her to testify, over Sarras’s objection, that it is not unusual for a thirteen-year-old child to fail to remember the exact times and dates of the abuse. The government concedes that Officer Ortiz was not qualified as an expert but argues that her testimony about children’s memories was lay, not expert, testimony. Rule 701 permits a lay witness to provide opinion testimony if the opinion (1) is “rationally based on the perception of the witness,” (2) “helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue,” and (3) “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.R.Evid. 701; compare Fed.R.Evid. 702 (reserving for expert witnesses testimony based on “scientific, technical, or other specialized knowledge”). The government argues that Officer Ortiz’s testimony is lay opinion because it is not based on scientific or specialized knowledge within the realm of an expert but rather on “particular knowledge gained by virtue of her position and repeated exposure to victims of sexual abuse.” See United States v. LeCroy, 441 F.3d 914, 927 (11th Cir.2006) (concluding that a police officer’s testimony that “a blood stain on the back of [the victim’s] shirt appeared to have been made by someone wiping a bloody knife off on the shirt” was a layperson observation that was admissible under Rule 701); United States v. Tinoco, 304 F.3d 1088, 1119 (11th Cir.2002) (stating that an agent’s characterization of defendant’s boat as “go-fast” boat was proper lay opinion testimony because it was based on personal observation as well as past experience). In response, Sarras argues this type of memory evidence is usually provided by a mental health professional and is precisely the" }, { "docid": "21233848", "title": "", "text": "balls to clean the nails, the polish off of her nails, that’s what acetone is. You’ll find acetone in nail polish remover. And you will either find the acetone in this form or many times I’ll find large bottles of fingernail polish remover. They will use that also. The district court denied Sosa’s requested instruction on the “in furtherance” element of the crime for which he was charged, possessing a firearm in furtherance of a drug trafficking offense. The jury found Sosa guilty of count four as alleged in the indictment. The district court sentenced Sosa to fifty-one months imprisonment on counts one, two, and three to run concurrently and sentenced Sosa to a consecutive sixty-month term on count four. Sosa timely appealed. II Sosa claims that the district court committed reversible error by admitting the testimony of law enforcement officers on (1) the use of chemicals found in Sosa’s apartment to manufacture narcotics; (2) the modification of the shotgun in Sosa’s closet; and (3) the prevalence of firearms in proximity to drugs and the reasons why firearms are often found near drugs. The district court admitted the officers’ testimony on these topics as lay opinion testimony. Sosa argues that the officers’ testimony was inadmissible as lay opinion because it was based on “specialized knowledge.” We review a district court’s evi-dentiary rulings for abuse of discretion. See United States v. Griffin, 324 F.3d 330, 347 (5th Cir.2003); United States v. Men doza-Medina, 346 F.3d 121, 127 (5th Cir.2003). “A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.” United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir.2005) (quoting Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir.2003)). Moreover, our review of evidentia-ry rulings in criminal trials is heightened. Mendoza-Medina, 346 F.3d at 127; United States v. Anderson, 933 F.2d 1261, 1268 (5th Cir.1991). Federal Rule of Evidence 701 governs the admissibility of opinion testimony by lay witnesses. Rule 701 provides: If the witness is not testifying as an expert, the witness’" }, { "docid": "22199365", "title": "", "text": "of the expert testimony of a police officer interpreting “drug codes and jargon.” United States v. Brown, 872 F.2d 385, 392 (11th Cir.1989) (affirming admission of opinion that references to “paper,” “candy,” and “dresses” related to the sale of cocaine). Also, at least one of our sister circuits has found that a district court committed error, albeit harmless, by admitting this type of testimony as lay witness opinion testimony rather than expert opinion testimony. See United States v. Figueroa-Lopez, 125 F.3d 1241, 1244-46 (9th Cir.1997). However, we 'do not accept the appellants’ position, because it is based on the erroneous assumption (at least with respect to the pre-amendment version of Rule 701) that because an expert could provide the type of testimony at issue, a lay witness cannot. Our case law is squarely to the contrary. In United States v. Myers, 972 F.2d 1566, 1577 (11th Cir.1992), this Court made clear that a witness does not fall outside of Rule 701 simply because his or her “rational! ] ... perception” is based in part on the witness’ past experiences. In Myers, the defendant, a former police officer charged with depriving arrestees of their civil rights by using a stun gun, challenged a district court’s admission of testimony that “reddish burn marks on [a victim’s] back were consistent with marks that would be left by a stun gun.” Id. at 1577. Myers argued that testimony should not have been admitted under Rule 701 because it “went beyond the everyday common knowledge of a lay person.” Id. This Court rejected his argument concluding that the witness’s “conclusion was rationally based upon his personal perception of [the victim’s] back and his nineteen years of experience on the police force.” Id. We further noted that “[t]o the extent that [the witness’s] opinion lacked a technical/medical basis, [the defendant] had the opportunity to expose this on cross-examination,” and the defendant’s “objection to the evidence goes to its weight and not its admissibility.” Id.; see also Agro Air Assocs., Inc. v. Houston Casualty Co., 128 F.3d 1452, 1455 (11th Cir.1997) (affirming the admission of lay witness" }, { "docid": "21233849", "title": "", "text": "reasons why firearms are often found near drugs. The district court admitted the officers’ testimony on these topics as lay opinion testimony. Sosa argues that the officers’ testimony was inadmissible as lay opinion because it was based on “specialized knowledge.” We review a district court’s evi-dentiary rulings for abuse of discretion. See United States v. Griffin, 324 F.3d 330, 347 (5th Cir.2003); United States v. Men doza-Medina, 346 F.3d 121, 127 (5th Cir.2003). “A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.” United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir.2005) (quoting Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir.2003)). Moreover, our review of evidentia-ry rulings in criminal trials is heightened. Mendoza-Medina, 346 F.3d at 127; United States v. Anderson, 933 F.2d 1261, 1268 (5th Cir.1991). Federal Rule of Evidence 701 governs the admissibility of opinion testimony by lay witnesses. Rule 701 provides: If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. (emphasis added). “[T]he distinction between lay and expert witness testimony is that lay testimony ‘results from a process of reasoning familiar in everyday life,’ while expert testimony ‘results from a process of reasoning which can be mastered only by specialists in the field.’ ” Fed. R.Evid. 701, Advisory Committee Notes to 2000 Amendments (quoting State v. Brown, 836 S.W.2d 530, 549 (Tenn.1992)). As explained by the Second Circuit, “a lay opinion must be the product of reasoning processes familiar to the average person in everyday life.” United States v. Garcia, 413 F.3d 201, 215 (2d Cir.2005). Moreover, any part of a witness’s opinion that rests on scientific, technical, or specialized knowledge must be determined" }, { "docid": "21806252", "title": "", "text": "dog attack, Benford told Ms. Galloway to “go get a gun.” R. Vol. 3 at 142. Ms. Galloway went upstairs into a second-floor apartment and then met Benford at a spot halfway up the stairs out of Ms. Dibler’s view. Benford then reapproached Ms. Dibler, voiced obscenities, and, from about five feet away, pointed a black handgun at her and waved it around. When Ms. Dibler dialed 911, Benford left in Ms. Galloway’s car. Under Federal Rule of Evidence 404(b)(1), Benford moved in limine to exclude his text messages and Ms. Dibler’s testimony. Relying on Rule 404(b)(2), the government contended that the disputed evidence of prior weapon possession was admissible for a purpose other than to prove character or propensity—namely, to help prove that Benford knew the Lorcin pistol was in his apartment and that he constructively possessed it. The district court agreed with the government and ruled the evidence admissible. At trial, the parties stipulated that Ben-ford had a prior felony conviction and that the Lorcin pistol had affected interstate commerce. The sole issue for the jury was whether Benford had knowingly possessed the pistol “[o]n or about May 21, 2014.” R. Vol. 1 at 108. To prove constructive possession, the government relied on the location and accessibility of the pistol in the bedroom; Benford’s statement and reaction when told that the police had found the pistol; Benford’s text messages; and Ben-ford’s and his girlfriend's knowledge of, and ability to retrieve, a different handgun three weeks earlier from the same apartment. After deliberating for one hour and twenty-five minutes, the jury found Ben-ford guilty of being a felon in possession of a firearm. Benford now appeals. II. Benford argues the district court erred in admitting the text messages from his cell phone from several months earlier indicating he had firearms to trade and Ms. Dibler’s testimony regarding a prior altercation during which Benford possessed a different firearm. We review the district court’s evidentiary rulings for an abuse of discretion. United States v. Mares, 441 F.3d 1152, 1156 (10th Cir. 2006). “We will not reverse a district court’s ruling if" }, { "docid": "14071588", "title": "", "text": "and code words used by drug dealers. Cf. United States v. Garcia, No. 95-1224, 1995 WL 712757, at *4-*5 (6th Cir. Dec.4, 1995) (unpublished) (affirming a decision to allow a police officer to give expert testimony as to the meaning of certain code words); United States v. Peoples, 250 F.3d 630, 640-41 (8th Cir.2001) (concluding that a police officer should not have been allowed to testify as to the meaning of code words on recorded conversations because she had not been qualified as an expert). We have on occasion allowed witnesses to apply specialized knowledge while giving lay testimony. See, e.g., United States v. Wells, 211 F.3d 988, 997-98 (6th Cir.2000) (affirming a decision allowing doctors to testify as fact witnesses that a person was cancer-free based on firsthand observations) (citing Richardson v. Consol. Rail Corp., 17 F.3d 213, 218 (7th Cir.1994)); United States v. Smith, No. 96-1885, 1998 WL 385471, at *4 (6th Cir. June 29, 1998) (unpublished) (affirming a decision to allow police officers to give lay testimony explaining the code words they used while negotiating a drug purchase). However, the 2000 amendment to Federal Rule of Evidence 701 clarified that lay opinions or inferences cannot be based on “scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. Even before the amendment, witnesses who performed after-the-fact investigations were generally not allowed to apply specialized knowledge in giving lay testimony. See Richardson, 17 F.3d at 218 (stating that a doctor is not an expert when his or her testimony is based on observations made during the course of treatment, is not acquired for purposes of litigation, and is based on personal knowledge); Peoples, 250 F.3d at 641 (“When a law enforcement officer is not qualified as an expert by the court, her testimony is admissible as lay opinion only when the law enforcement ofScer is a participant in the conversation, has personal knowledge of the facts being related in the conversation, or observed the conversations as they occurred.”). Thus, the district court did not err by concluding that Drueck’s proposed testimony could" }, { "docid": "23328108", "title": "", "text": "the district court erred by admitting lay opinion testimony from FBI agents concerning their understanding of what Simas meant to convey by his vague and ambiguous statements during the course of the alleged crimes. Simas argues this testimony was inadmissible under Federal Rule of Evidence 701 and, in the alternative, its unfair prejudicial effect outweighed any probative value. See Fed.R.Evid. 403. The admission of lay opinion testimony is “within the broad discretion of the trial judge [and] not to be disturbed unless it is manifestly erroneous.” United States v. Fleishman, 684 F.2d 1329, 1335 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982). Except for one instance, Simas’ trial counsel failed to object to the testimony which his appellate counsel now challenges. Therefore, except for the single objection made at the time of trial, we review for plain error. United States v. Smith, 790 F.2d 789, 793 (9th Cir.1986). For lay opinion testimony to be admissible, the opinion must be (1) “rationally based on the perception of the witness” and (2) must be helpful to the jury in acquiring a “clear understanding of the witness’ testimony or the determination of a fact in issue.” Fed.R.Evid. 701. Each FBI agent testified about statements made to that agent. This was sufficient to satisfy the first requirement of Rule 701. See 3 D. Louisell, C. Mueller, Federal Evidence § 376, at 618 (1979) (stat ing first requirement is simply a restatement of the personal knowledge requirement necessary for all lay witness testimony). As to the second requirement, a lay witness’ opinion concerning the witness’ understanding of the declarant’s statements or conduct may be helpful to the jury. See Burnette, 698 F.2d at 1051 (officer’s opinion that defendant was removing license plates from car), cert. denied, 461 U.S. 936, 103 S.Ct. 2106, 77 L.Ed.2d 312 (1983); United States v. De Peri, 778 F.2d 963, 977-78 (3d Cir.1985) (witness testifies to understanding of defendant’s ambiguous references and unfinished sentences), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986). In addition, we previously have allowed law enforcement officers" }, { "docid": "22588290", "title": "", "text": "F.3d 953, 963 (7th Cir.2000). Where opinion testimony focuses on the standard of the objectively reasonable officer, “it is more likely that Rule 702’s line between common and specialized knowledge has been crossed.” Kopf, 993 F.2d at 378. In Perkins’s case we conclude that the district court, although close to crossing that line, properly admitted the challenged testimony given by Officers House and Fisher. Both officers observed Perkins kick Koonce and thus testified based on their contemporaneous perceptions; as such, their testimony satisfies Rule 701’s personal knowledge requirement. See Fed.R.Evid. 701. Moreover, their observations were “common enough and require[d] such a limited amount of expertise ... that they can, indeed, be deemed lay witness opinion[s].” United States v. Von-Willie, 59 F.3d 922, 929 (9th Cir.1995). Because their testimony was framed in terms of their eyewitness observations and particularized experience as police officers, we have no trouble finding that their opinions were admissible under Rule 701. On the other hand, the “reasonableness” testimony given by Sergeants Waldron and Jones and Corporal Allen crossed the line between Rules 701 and 702. None of those officers observed Perkins’s use of force on Koonce. Their opinions that Perkins’s use of force was inappropriate were elicited in response to hypothetical questions based on secondhand accounts, making their testimony similar, if not indistinguishable, from the properly qualified expert testimony admitted at Perkins’s trial and admitted in other excessive force cases. See, e.g., United States v. Mohr, 318 F.3d 613, 623-24 (4th Cir.2003)(admitting expert testimony on the reasonableness of the defendant’s use of force when the expert did not observe the defendant’s actions but instead gave his opinion in response to abstract questions). Such opinion testimony does not satisfy Rule 701’s personal knowledge requirement. See United States v. Glenn, 312 F.3d 58, 67 (2d Cir.2002)(drug dealer’s testimony that the defendant must have been carrying a gun was erroneously admitted under Rule 701 because the witness lacked first-hand knowledge); Washington v. Dep’t of Transp., 8 F.3d 296, 300 (5th Cir.1993)(“Under the Federal Rules of Evidence, speculative opinion testimony by lay witnesses — i.e., testimony not based upon the" }, { "docid": "22588291", "title": "", "text": "Rules 701 and 702. None of those officers observed Perkins’s use of force on Koonce. Their opinions that Perkins’s use of force was inappropriate were elicited in response to hypothetical questions based on secondhand accounts, making their testimony similar, if not indistinguishable, from the properly qualified expert testimony admitted at Perkins’s trial and admitted in other excessive force cases. See, e.g., United States v. Mohr, 318 F.3d 613, 623-24 (4th Cir.2003)(admitting expert testimony on the reasonableness of the defendant’s use of force when the expert did not observe the defendant’s actions but instead gave his opinion in response to abstract questions). Such opinion testimony does not satisfy Rule 701’s personal knowledge requirement. See United States v. Glenn, 312 F.3d 58, 67 (2d Cir.2002)(drug dealer’s testimony that the defendant must have been carrying a gun was erroneously admitted under Rule 701 because the witness lacked first-hand knowledge); Washington v. Dep’t of Transp., 8 F.3d 296, 300 (5th Cir.1993)(“Under the Federal Rules of Evidence, speculative opinion testimony by lay witnesses — i.e., testimony not based upon the witness’s perception — is generally considered inadmissible.”). Accordingly, the district court erred in admitting Jones’s, Waldron’s, and Allen’s opinion testimony without a proper foundation. Nevertheless, we are confident that this error did not affect the outcome of Perkins’s trial. Sergeant Jones’s brief “reasonableness” testimony came on the heels of his clearly admissible and extensive testimony about a conversation he had with Perkins during which Perkins admitted to kicking Koonce and demonstrated for Jones how he had kicked him. Furthermore, both Sergeant Waldron, who recounted that his fourteen years of experience included time as a training officer, corporal, and sergeant, and Corporal Allen, whose experience and training was enough to cause the district court to assume his expert status, could have been offered as expert police witnesses in the first instance. See Kopf, 993 F.2d at 376 (a “witness’ qualifications to render an expert opinion are ... liberally judged by Rule 702”); United States v. Figueroa-Lopez, 125 F.3d 1241, 1246-47 (9th Cir.1997)(holding that, although it was error for the district court to admit opinion testimony under" }, { "docid": "1295511", "title": "", "text": "and threatened various officers. Even if the court had admitted the statement, it would have added little to Myers’ case. In addition, the court’s refusal to admit it did not prejudice Myers’ case. Myers claims that Bice’s testimony was crucial because “no other corroborating witness was called to testify on behalf of the Defendant.” The record shows, however, that Myers had called Officer Robert Brown to corroborate his testimony about the Yanez affair. The court did not abuse its discretion in excluding Bice’s testimony as to Yanez’s statement. C. Testimony of three lay witnesses Myers contends that the court erred in allowing three lay witnesses, Officers Welch, Baker, and Fleming, to testify as to their opinions. The ultimate decision as to the admissibility of lay opinion testimony is committed to the sound discretion of the district court and will not be overturned on appeal unless there is clear abuse of discretion. See United States v. Davis, 787 F.2d 1501, 1505 (11th Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 184, 93 L.Ed.2d 118 (1986). Rule 701 of the Federal Rules of Evidence permits a lay witness to offer his opinion if it is “rationally based on the perception of the witness and [is] helpful to a clear understanding of [the witness’s] testimony or the determination of a fact in issue.” Fed.R.Evid. 701. Myers claims that the court should not have allowed Officer Welch to testify as to his opinion that the reddish burn marks on Yanez’s back were consistent with marks that would be left by a stun gun on the ground that his testimony went beyond the everyday common knowledge of a lay person. In addition, Myers argues that the proper foundation was not laid for Welch’s testimony. Welch’s testimony was relevant to the determination of a fact in issue — whether the burn marks on Yanez’s back were caused by the stun gun. His conclusion was rationally based upon his personal perception of Yanez’s back and his nineteen years of experience on the police force. To the extent that Welch’s opinion lacked a technical/medical basis, Myers had the" }, { "docid": "21233851", "title": "", "text": "by reference to Rule 702, not Rule 701. /¿.(citing Fed.R.Evid. 701, Advisory Committee Notes to 2000 Amendments). The district court allowed law enforcement officials to provide lay testimony on these subjects — the use of chemicals in drug manufacturing, modifications to firearms, and the reason why drug dealers carry guns — under Rule 701, reasoning that testimony on these matters was not based on specialized knowledge within the scope of Rule 702, but rather upon the witnesses’ personal knowledge. For much of the disputed testimony, we doubt that the district court abused its discretion in determining that the particular testimony at issue fell within the bounds of permissible lay opinion testimony and thus did not impinge the territory of specialized knowledge. For example, with respect to Officer Reeves’s testimony about the modifications made to the shotgun, we doubt that this testimony exceeded the bounds of permissible lay opinion testimony. Most of the testimony was merely descriptive. It is not clear that the testimony that went beyond description, into the realm of opinion, was based on “specialized knowledge” as opposed simply to common sense or the officer’s past experience formed from firsthand observation. Yet, with respect to at least some of the testimony, specifically the detailed testimony of Officer Reeves regarding the use of the chemicals found in Sosa’s apartment, the district court may have erred in admitting this testimony as lay opinion. However, we need not conclusively resolve this issue because, even assuming for the sake of argument that the evidence should have been excluded, any error in admitting this testimony was harmless. An abuse of discretion in admitting or excluding evidence is subject to harmless error review. Ragsdale, 426 F.3d at 774-75; Mendoza-Medina, 346 F.3d at 127. Under the harmless error doctrine, even if the district court abuses its discretion in admitting or excluding evidence, we will affirm “[u]nless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction.” Mendoza-Medina, 346 F.3d at 127; see also Fed R.Ckim. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”)." } ]

[ { "docid": "22420674", "title": "", "text": "letters stating that his office sends letters to a typing school to be typed. The Immigration Judge found that the explanation was unconvincing. We are not persuaded that the Immigration Judge’s 'conclusion is unreasonable. [Eta-Ndu] did not supply a statement from the author of the other letter, or from anyone in the location where that letter originated, to confirm that the other branch also uses the same typing school. In addition, we note that [Eta-Ndu] has not supplied a statement from the typing school to confirm that the school receives correspondence from both branches, types the correspondence, and returns the documents to the branches for a signature. The BIA also declined to review additional evidence submitted by Eta-Ndu after the IJ’s decision. III. Asylum and Withholding of Deportation Eta-Ndu contends that the BIA erred as a matter of law in affirming the IJ’s decision that Eta-Ndu failed to establish a “well-founded fear of persecution” on account of his political opinion or social group membership. “Because the BIA essentially adopted the IJ’s opinion while adding some of its own reasoning, we review both decisions.” Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir.2004), citing Siong v. INS, 376 F.3d 1030, 1036 (9th Cir.2004); Chand v. INS, 222 F.3d 1066, 1072 n. 7 (9th Cir.2000). Both the IJ and the BIA denied asylum and withholding of deportation, finding Eta-Ndu did not meet his burden of proof. This denial must be upheld if “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), quoting 8 U.S.C. § 1105a(a)(4) (1994). “[This] standard is a deferential one, requiring a reviewing court to uphold a denial of asylum unless an alien demonstrates ‘that the evidence he presented was so compelling that no reasonable fact finder could fail to find the requisite fear of persecution.’ ” Nyama v. Ashcroft, 357 F.3d 812, 816 (8th Cir.2004), quoting Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812. Credibility determinations are upheld if supported by specific, cogent reasons for disbelief. Perinpanathan v. INS," } ]

[ { "docid": "23021539", "title": "", "text": "not a credible witness, (2) he had not established past persecution in Algeria necessary for entitlement to asylum relief, (3) he had failed to show that he had a well-founded fear of persecution should he be removed to Algeria, (4) he could not meet the higher burden for withholding of removal since he had not met his burden for eligibility for asylum, and (5) he had not met his burden of demonstrating that it is more likely than not he would be subjected to torture if he returned to Algeria, as required for relief under the CAT. On appeal, the BIA generally adopted the IJ’s findings of fact and conclusions of law, noting the guidelines for determining credibility as set forth in the REAL ID Act of 2005, and finding no clear error in the IJ’s adverse credibility determination. The BIA agreed that, even accepting as credible Allalen’s testimony, Allalen had failed to show that the incidents he experienced equated to past persecution, or that he had a well-founded fear of persecution based on those incidents. The BIA rejected Allalen’s argument that the IJ’s questioning, tone, or comments denied him a fair hearing and due process. Lastly, the BIA affirmed the denial of withholding of removal and relief under the CAT. Allalen petitioned this court for review of the denial of asylum. He has failed to challenge, on appeal, the IJ’s and the BIA’s determinations that he was not entitled to withholding of removal or relief under the CAT. Therefore, these grounds for relief have been abandoned and we will not address them. Patel v. Gonzales, 470 F.3d 216, 219 (6th Cir.2006). B. Jurisdiction and Standard of Review We have jurisdiction over the petitioner’s request for asylum pursuant to 8 U.S.C. § 1252(a)(1). This court has jurisdiction to review the final decision of the BIA “affirming the IJ’s denial of asylum.” Singh v. Ashcroft, 398 F.3d 396, 400 (6th Cir.2005). Generally, this court reviews the BIA’s decision to determine whether it is supported by substantial evidence. Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir.2005). Where the Board adopts the" }, { "docid": "2087549", "title": "", "text": "avoid the one year limit on applying for asylum, he does not qualify for asylum because he has not presented evidence establishing either past persecution or a well-founded fear of future persecution.” In addition, the IJ denied petitioner’s application for withholding of removal, finding as to the CAT application that he had not established “that it would be ‘more likely than not’ that he would be tortured if returned to Sri Lanka.” Petitioner was granted voluntary departure. Petitioner timely appealed the IJ’s decision to the BIA. On August 4, 2003, the BIA adopted and affirmed the IJ’s decision and dismissed the appeal. This petition for review, in which petitioner challenges only the denial of withholding of removal under CAT, followed. II. Discussion Petitioner challenges the BIA’s order on several grounds. First, he argues that the BIA incorrectly applied the one-year filing deadline for asylum applications to his claim for protection under CAT. A fair reading of the BIA’s order, however, does not support this contention. The IJ’s decision analyzes petitioner’s requests for asylum and CAT protection separately, applying the one-year filing rule only to the former. The BIA adopted and affirmed this decision, explaining in its order that its “conclusions upon review of the record coincide with those the Immigration Judge articulated in his or her decision.” Though the order reiterates the basis for the denial of the asylum application, namely, petitioner’s untimely filing, it does not suggest that the BIA has applied this rule to the CAT claim as well. Next, petitioner argues that the BIA violated his due process rights by failing to consider his brief on appeal. Whether an alien’s right to due process has been violated is a legal question which we review de novo. See Kuschchak v. Ashcroft, 366 F.3d 597, 602 (7th Cir.2004) (citing Nazarova v. INS, 171 F.3d 478, 482 (7th Cir.1999)). The BIA’s actions are entitled to a presumption of regularity, and thus the burden is on petitioner to convince us that the BIA failed to consider the evidence and arguments presented. Kaczmarczyk v. INS, 933 F.2d 588, 595 (7th Cir.1991) (citations" }, { "docid": "19750054", "title": "", "text": "PER CURIAM. Sara Kassa Kebede entered the United States on an Ethiopian passport in July 2001 and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) on behalf of herself and her son, Michael Tesfaye Yig-ezu. After an evidentiary hearing, the Immigration Judge (IJ) denied all relief, finding that Kebede’s testimony as to past persecution by the Ethiopian government was not credible and, even if credible, did not establish either past persecution or a well-founded fear of future persecution if she and her son are removed to Ethiopia. The Board of Immigration Appeals (BIA) assumed without deciding that Kebede’s testimony was credible and affirmed the IJ’s decision on the merits. Petitioners seek judicial review of the BIA’s final agency action. We deny the petition for review. Petitioners first argue the BIA committed reversible error when it failed to review the IJ’s adverse credibility find ing. We review the BIA’s final agency action, not alternative rulings of the IJ that were not reviewed by the BIA nor necessary to its decision. See Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir.2006). Occasionally, the BIA’s failure to address a disputed credibility issue will leave us unable to discern the BIA’s analysis, as in El-Sheikh v. Ashcroft, 388 F.3d 643, 648 (8th Cir.2004). Then, of course, we must remand. See INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). But here, the BIA assumed petitioners’ testimony was credible in finding insufficient proof of past persecution or a well-founded fear of future persecution. Therefore, we review only the BIA’s persecution analysis. Petitioners next argue that Kebede presented sufficient credible, corroborated, detailed evidence of past persecution and a well-founded fear of future persecution. We review the BIA’s contrary findings under the substantial evidence standard, upholding the agency’s decision unless the evidence “was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Kebede testified that, beginning in 1997, she supported an opposition political party, the All-Amhara" }, { "docid": "1034867", "title": "", "text": "asylum, that the IJ violated his due process rights by failing to provide a Punjabi translator and by conducting the immigration hearing in an egregious and biased manner, and that the BIA erred by affirming without opinion. Alyas does not argue that the IJ or the BIA erred in denying relief under the Convention Against Torture, and only summarily mentions any request for a review of the decision to deny the withholding of removal. Alyas also failed to argue before the BIA that the IJ erred in denying the withholding of removal and relief under the Convention Against Torture. (Admin. R. at 28-34.) Because Alyas does not argue these issues in his brief, we do not consider them as part of the petition for review. See Falaja v. Gonzales, 406 F.3d 1076, 1085 (8th Cir.2005) (holding that petitioner who did not argue on appeal that IJ erred by denying relief under the Convention Against Torture waived that argument); Gebremaria v. Ashcroft, 378 F.3d 734, 736 n. 4 (8th Cir.2004) (holding that court of appeals lacks jurisdiction to decide an issue not first presented to the BIA). II. We review the IJ’s determination that Alyas is not eligible for asylum for substantial evidence on the record as a whole. Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir.2004). We will not reverse the IJ’s decision unless the evidence is so compelling that no reasonable fact finder could fail to find eligibility for asylum. Id. At the Attorney General’s discretion, asylum may be granted to an alien who meets the statutory definition of a refugee. See 8 U.S.C. §§ 1158(b) and 1101(a)(42)(A) (2000). In order to be statutorily eligible, Alyas is required to demonstrate past persecution or a well-founded fear of future persecution on account of one of five enumerated grounds — in Alyas’s case, his political opinion. A well-founded fear is one that is both “subjectively genuine and objectively reasonable.” Ismail v. Ashcroft, 396 F.3d 970, 973 (8th Cir.2005). Where an alien has established past persecution, we presume that the alien also has a well-founded fear of future persecution unless the" }, { "docid": "5181029", "title": "", "text": "identify its source, or any consequences he endured beyond the one warning which did not include a threat of harm. The IJ found Ladyha’s testimony generally credible. While she acknowledged possible mistreatment, the IJ concluded that Ladyha had not established a well-founded fear of persecution on any ground or a likelihood that he would be tortured if removed to Belarus, and the BIA agreed. Ladyha has not challenged the denial of his application for CAT relief, 8 C.F.R. § 1208.16(c)(2), or voluntary departure, id. at § 1229c(b)(1)(A). Therefore we review only the decision about his eligibility for asylum and withholding. An asylum applicant must prove that he cannot return to his country of origin “because of persecution or a well-founded fear of persecution on account of ... religion ... or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “Persecution is the infliction or threat of death, torture, or injury to one’s person or freedom, on account of race, religion, nationality, membership in a particular social group, or political opinion.” Davila-Mejia v. Mukasey, 531 F.3d 624, 628 (8th Cir.2008) (quotation omitted). An applicant may qualify for asylum by proof of either past persecution or a well founded fear or future persecution. 8 C.F.R. § 208.13(b). “We review the BIA’s decision as the final agency action, including the IJ’s findings and reasoning to the extent they were expressly adopted by the BIA.” Lovan v. Holder, 574 F.3d 990, 993 (8th Cir.2009)(quotation omitted). We review the record for substantial evidence and affirm unless the evidence was “so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Gomez v. Gonzales, 425 F.3d 543, 545 (8th Cir.2005), citing I.N.S. v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Ladyha has not demonstrated that the record evidence compels reversal on the basis of past persecution. While Ladyha testified he was threatened at knifepoint, the “king of the city” comment by his assailants is accurately characterized as “exaggerated, non-specific, or lacking in immediacy.” Corado v. Ashcroft, 384 F.3d 945, 947 (8th Cir.2004). Ladyha was unharmed. See Quomsieh v. Gonzales, 479" }, { "docid": "22786837", "title": "", "text": "D.W. NELSON, Senior Circuit Judge: Afroza and Khandker Hasan, husband and wife, and native citizens of Bangladesh, petition for review of the Board of Immigration Appeals’ denial of their requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) found that the Hasans had failed to establish that their past persecution was on account of an enumerated ground, and therefore dismissed their claims for asylum and withholding of removal. The IJ also found that the Hasans had failed to establish that, upon their return to Bangladesh, they were more likely than not to experience torture with the consent or approval of government officials acting in their official capacity, and therefore, denied them relief under CAT. The Board of Immigration Appeals (“BIA”) affirmed the decision of the IJ without opinion. We have jurisdiction pursuant to the Immigration and Nationality Act (“INA”) § 242(a)(1), 8 U.S.C. § 1252(a)(1). We find that substantial evidence supported the IJ’s conclusion that the Hasans had not established eligibility for CAT relief. However, the IJ erred in concluding that the Hasans had not established that their past persecution was on account of political opinion. Accordingly, we grant the petition for review and reverse and remand to the BIA for further proceedings consistent with this opinion. I. Factual and Procedural History The following facts are drawn from the Hasans’ testimony at their asylum hearing, as well as their written application for asylum. Because the IJ did not make an adverse credibility finding, we accept the Hasans’ testimony as true. See Damon v. Ashcroft, 360 F.3d 1084, 1086 n. 2 (9th Cir.2004). A. The Hasans’ Experiences in Bangladesh Afroza Hasan (hereinafter “Afroza,” in order to distinguish her from her husband “Khandker”), the lead petitioner, worked as a reporter for Purnima, a local newspaper in Bangladesh. She primarily reported on women’s issues in the region in which she lived. Afroza was a member of the Bangladesh Nationalist Party (“BNP”), one of Bangladesh’s major political parties. She was also a member of Mohila Parish-ad, a women’s organization that served distressed women in the" }, { "docid": "19984984", "title": "", "text": "justified a well-founded fear of future persecution. The IJ also ruled that any fear that Baba may have about future persecution was undermined by changed country circumstances, as President Eyadéma had since died, the UTD no longer existed, and elections had taken place. For the same reasons, the IJ denied Baba’s demand for withholding of removal based on the CAT. Baba appealed to the BIA, which, on December 14, 2007, dismissed the appeal. The BIA noted its agreement with the IJ that the incidents complained of did not rise to the level of persecution, noting especially that Baba had been able to return to his government job after each alleged arrest. The BIA further determined that even if Baba had successfully established past persecution, denial of his application was proper because the IJ’s “uncontested finding of changed country conditions” prevented Baba from establishing a well-founded fear of future persecution. The BIA also determined that Baba’s past mistreatment was not of the severity warranting a grant of humanitarian parole notwithstanding the IJ’s finding of changed country conditions. The BIA also affirmed the IJ’s denial of relief under the CAT. DISCUSSION “When the BIA briefly affirms the decision of an IJ and adopts the IJ’s reasoning in doing so, we review the IJ’s and the BIA’s decisions together.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006) (internal quotation marks omitted). We review the BIA’s factual findings, including the agency’s consideration of relevant evidence of country conditions, under the substantial evidence standard. See Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). However, “when the situation presented is the BIA’s application of legal principles to undisputed facts, ... our review is de novo.” Monter v. Gonzales, 430 F.3d 546, 553 (2d Cir.2005) (internal quotation marks omitted). I. Past Persecution Under the Immigration and Nationality Act (“INA”), a petitioner is eligible for asylum at the discretion of the Attorney General if he demonstrates that he suffered past persecution or has a well-founded fear of future persecution on account of a statutorily-protected ground. See 8 U.S.C. §§ 1101(a)(42), 1158; see" }, { "docid": "23577109", "title": "", "text": "forms of relief on June 26, 2006, and granted voluntary departure. The BIA dismissed the appeal on December 13, 2007, finding that neither Zhao nor Duan had shown past persecution or a well-founded fear of future persecution to be eligible for asylum. It also denied withholding of removal and CAT relief. II. Analysis We have jurisdiction to review a final order of the Board of Immigration Appeals (“BIA”) under 8 U.S.C. § 1252(a)(1). Because the BIA affirmed the IJ’s decision pursuant to Matter ofBurbano, 20 I. & N. Dec. 872 (B.I.A.1994), and did not express any disagreement with it, we review the IJ’s decision as if it were that of the Board. Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th Cir.2005) (en banc). We review findings of fact for substantial evidence and uphold the denial of asylum if the decision is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. (internal quotation marks omitted). Reversal is warranted, however, if the evidence in the record compels a reasonable factfinder to conclude that the IJ’s decision is incorrect. Zhou, 437 F.3d at 865. In this petition for review, Zhao and Duan raise only their asylum claims. They are eligible for asylum if they show that they are “unable or unwilling to return to ... [their] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also Duarte de Guinac v. INS, 179 F.3d 1156, 1158-59 (9th Cir.1999). A finding of a “well-founded fear of persecution” requires both a showing of “subjectively genuine” and “objectively reasonable” fear. Ladha v. INS, 215 F.3d 889, 897 (9th Cir.2000) (internal quotation marks omitted). The subjective component is satisfied by credible testimony that the applicant genuinely fears persecution. See id. The objective prong is satisfied either by a rebuttable presumption arising from a showing of past persecution, or by a showing of “a good reason to fear future persecution” based on “credible, direct, and specific evidence in the record of facts" }, { "docid": "23344900", "title": "", "text": "PER CURIAM. Petitioner Zhou Yi Ni, a native and citizen of the People’s Republic of China (“China”), petitions this Court for review of an October 28, 2002 order of the Board of Immigration Appeals (“BIA”) affirming a November 23, 1999 decision by an immigration judge (“IJ”) that denied petitioner’s application for asylum and withholding of removal. Petitioner also appeals the BIA’s denial of a remand for consideration of his claims under the Convention Against Torture (“CAT”), adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85; 8 C.F.R. § 208.16. We begin by addressing petitioner’s application for asylum and withholding of removal. Where, as here, the BIA summarily affirmed the IJ’s decision to deny asylum, we review the IJ’s decision rather than the BIA’s order. See Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004). Petitioner’s asylum claim rests on the persecution he allegedly suffered for violating China’s coercive family planning policy. In particular, petitioner testified that his wife was involuntarily sterilized by China’s authorities after the birth of the couple’s second child. Petitioner further claimed that, upon return to China, he would be persecuted for having fathered two children. The IJ found petitioner not credible, based in part on serious contradictions between petitioner’s account of his wife’s sterilization and his wife’s own asylum application. The IJ also found that petitioner had not established that he had himself suffered past persecution or that he had a well-founded fear of future persecution. Our review of the IJ’s credibility findings is highly deferential, see Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004), and the IJ’s “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); see also Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). ‘Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude" }, { "docid": "82430", "title": "", "text": "been or might become victims of crime.” The IJ also explained that Granada-Rubio fails to qualify for CAT protection “because the record does not establish a clear likelihpod that a public official in El Salvador would likely acquiesce in or exhibit willful blindness toward any torture inflicted by gang members that the respondent fears.” The BIA affirmed the IJ’s determinations and dismissed Granada-Rubio’s appeal on May 29, 2015. This petition for review followed. We discuss the BIA’s reasoning below. II. “Where the BIA affirms the IJ’s ruling but adds its own discussion, we review both decisions.” Panoto v. Holder, 770 F.3d 43, 46 (1st Cir.2014). “We will uphold a decision so long as it is ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Id. (quoting Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir.2014)). “That the record supports a conclusion contrary to that reached by the BIA is not enough to warrant upsetting the BIA’s view of the matter; for that to occur, the record must compel the contrary conclusion.” Lopez de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir.2007). We review questions of law de novo. Ziu v. Gonzales, 412 F.3d 202, 204 (1st Cir.2005) (per curiam). A. Asylum and Withholding of Removal To qualify for asylum, an alien must establish, inter alia, that she is unwilling or unable to return to 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.” 8 U.S.C. § 1101(a)(42); see 8 U.S.C. § 1158(b)(1). The BIA agreed with the IJ’s conclusions that (a) Granada-Rubio did not establish persecution, and (b) Granada-Rubio did not establish that she was part of “a particular social group for asylum purposes.” Either of these conclusions would be sufficient to support a denial of Granada-Ru-bio’s asylum application. See 8 U.S.C. § 1101(a)(42). Assuming, arguendo, that Granada-Rubio established that she has faced or will face persecution, the IJ and the BIA were warranted in finding that Granada-Rubio has not been persecuted based on her" }, { "docid": "21391294", "title": "", "text": "having been filed more than one year after his entry into the United States. The IJ also held that Irasoc failed to meet his burden of proof with respect to withholding of removal. He reasoned that Ira-soc had openly practiced his religion for most of his adult life and proselytized throughout Romania without “great difficulty.” Further, he said that religious freedom has “flourished” in Romania since the overthrow of the Communist government; the Romanian Pentecostal Church itself has over 30,000 members. The IJ concluded that the July 2002 incident was not past persecution because it was a single episode of mistreatment during which Irasoc was not “serious harmed.” Separately, the IJ determined that Irasoc had failed to establish a “more likely than not” fear of future persecution. And, as to the CAT claim, the IJ found that Irasoc offered no evidence that he was “more likely than not” to be tortured upon removal to Romania. The BIA affirmed the IJ’s decision and dismissed Irasoc’s appeal. Irasoc’s petition for review only concerns the denial of his application for withholding of removal. He argues that he not only established past persecution, but also a well-founded fear of future persecution were he to be returned to Romania. He does not challenge the IJ’s denial of his claim for relief under CAT or the denial of his application for asylum. Because the BIA adopted and affirmed the IJ’s reasoning, we review the IJ’s decision as supplemented by the BIA. See BinRashed v. Gonzales, 502 F.3d 666, 670 (7th Cir.2007). We review the agency’s determination under a highly deferential standard-we will uphold the decision so long as it is supported by substantial evidence, and will not reverse unless the BIA made an error of law, e.g., Asani v. INS, 154 F.3d 719, 722-23 (7th Cir.1998), or the record compels a contrary result, e.g., Boci v. Gonzales, 473 F.3d 762, 766 (7th Cir.2007); BinRashed, 502 F.3d at 670; Dandan v. Ashcroft, 339 F.3d 567, 572 (7th Cir.2003). To establish eligibility for withholding of removal, an applicant must show a “clear probability” of persecution on account of" }, { "docid": "18239930", "title": "", "text": "SELYA, Circuit Judge. The petitioner, Marlene Lisbeth Arévalo-Girón, is a Guatemalan national. She seeks judicial review of a final order of the Board of Immigration Appeals (BIA) denying her application for withholding of removal. After careful consideration, we deny the petition. The petitioner entered the United States on November 1, 1997, without inspection. Some ten years later, the Department of Homeland Security discovered her presence and initiated removal proceedings against her. See 8 U.S.C. § 1182(a)(6)(A)®; id. § 1229a(a)(2). Before the immigration judge (IJ), the petitioner conceded removability but cross-applied for asylum, withholding of removal, and protection under the United States Convention Against Torture (CAT). In support, she asserted that if returned to Guatemala, she would face persecution on account of her status as either a single woman with perceived wealth or a former “child of war.” The IJ determined that her claim for asylum was time-barred; denied withholding of removal on the ground that she had failed to demonstrate a likelihood of persecution in Guatemala on account of a statutorily protected status; and dismissed her entreaty for CAT relief because she had not shown any governmental involvement in the feared harm. The BIA affirmed the IJ’s decision. This timely petition for judicial review followed. In it, the petitioner challenges only the denial of withholding of removal. Because the BIA added its own gloss to the IJ’s reasoning, we review the two decisions as a unit. See Lopez Perez v. Holder, 587 F.3d 456, 460 (1st Cir.2009). In conducting that review, we test the agency’s factual findings, including credibility determinations, under the familiar substantial evidence rule. Morgan v. Holder, 634 F.3d 53, 56-57 (1st Cir.2011). This rule requires us to accept all factual findings that are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)) (internal quotation marks omitted). In other words, we must uphold such a finding unless the record compels a contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); Sompotan" }, { "docid": "22405335", "title": "", "text": "PER CURIAM: Petitioner, Merlinda Santoso (“petitioner” or “Santoso”), a native and citizen of Indonesia, seeks review of a September 28, 2007 order of the Board of Immigration Appeals (“BIA”) affirming the January 30, 2006 decision of an immigration judge (“IJ”) denying Santoso’s application for asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and voluntary departure. In her petition to this Court, Santoso argues that the BIA and the IJ failed adequately to address her claim that there exists a pattern or practice of persecution of ethnic Chinese and Catholics in Indonesia. BACKGROUND Petitioner arrived in the United States on or about August 2,1999, with authorization to remain for a temporary period not to exceed six moths. On May 23, 2005, nearly six years after her arrival, petitioner filed an application for asylum, withholding of removal, and relief under the CAT. Shortly thereafter, the Department of Homeland Security charged her with removal pursuant to 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States for a time longer than permitted and ordered her to appear before an IJ on September 9, 2005. At her hearing before the IJ, petitioner conceded her removability but requested asylum, withholding of removal, CAT protection, and voluntary departure. On January 30, 2006, after hearing petitioner’s testimony in support of her application, the IJ denied the relief sought. That decision was affirmed by the BIA on September 28, 2007, whereupon petitioner timely filed for review by this Court. I. Where the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). “We review de novo questions of law and the application of law to undisputed fact.” Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008)." }, { "docid": "12118294", "title": "", "text": "but concluded that they did not negate the more recent State Department reports. Finding that the government met its burden and rebutted the presumption of a well-founded fear of future persecution, the IJ accordingly denied Uruci’s claim for asylum. Moreover, since Uruci failed to meet the asylum standard, the IJ concluded that he did not meet the more stringent standard for withholding of removal. Turning to Uruci’s claim for protection under CAT, the IJ found that Uruci failed to establish that “it is more likely than not” that if returned to Albania, he would be tortured by an official of the Albanian Government. Thus, the IJ denied Uruci’s application for protection under CAT. The BIA affirmed the IJ’s decision on the basis of changed country conditions. II. Discussion We start with Uruci’s asylum claim, because a failure to establish a well-founded fear of persecution necessarily forecloses a petitioner’s ability to qualify for withholding of removal by showing that more likely than not he would face persecution. Mediouni v. INS, 314 F.3d 24, 27 (1st Cir.2002). “Where, as here, ‘the BIA has adopted and affirmed the IJ’s ruling, but also discussed some of the bases for the IJ’s opinion, we review both the IJ’s and the BIA’s opinions.’ ” Lin v. Gonzales, 503 F.3d 4, 6-7 (1st Cir.2007) (quoting Zheng v. Gonzales, 475 F.3d 30, 33 (1st Cir.2007)). The IJ’s factual findings and decision are reviewed under the deferential “substantial evidence” standard. Carcamo-Recinos v. Ashcroft, 389 F.3d 253, 256 (1st Cir.2004). Under this standard, we will uphold the decision if it is supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Aihua Chiv Wang v. Mukasey, 508 F.3d 80, 84 (1st Cir.2007). A petitioner bears the burden of establishing eligibility for asylum by demonstrating a well-founded fear of future persecution that is based on one of five statutory grounds: race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A); Afful v. Ashcroft, 380 F.3d 1, 3 (1st Cir.2004). By showing past persecution, a petitioner creates a rebutta-ble presumption that his" }, { "docid": "22944869", "title": "", "text": "PER CURIAM: Petitioner Ritvan Mehmeti, a native and citizen of Abania, through counsel, seeks review of the Board of Immigration Appeals’s (“BIA”) order affirming the Immigration Judge’s (“U”) decision denying his application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1231, and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c). In his petition, Mehmeti first argues that the IJ erred in denying his application for asylum based on its finding that he did not have a well-founded fear of persecution because the country conditions in Abania had changed. He argues that the IJ erred in relying solely on reports prepared by the U.S. Department of State in determining that the conditions in Albania had changed. Because he established a well-founded fear of persecution, Mehmeti argues, the IJ also erred in denying his application for withholding of removal. Next, Mehmeti argues that the BIA erred in denying his request for asylum based solely on the severity of his past persecution. Finally, Mehmeti argues that the BIA erred in denying his request for CAT relief, submitting that the BIA failed to show that he would less likely than not be tortured if returned to Albania. We review only the BIA’s decision, except where it expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). To the extent that the BIA adopts the IJ’s reasoning, we review the IJ’s decision as well. Id. Here, we will review only the BIA’s decision because it did not expressly adopt the IJ’s decision or its reasoning. See id. We review the BIA’s factual determinations under the highly deferential substantial-evidence test and “must affirm the BIA’s decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. at 1283-84 (internal quotation marks omitted). We can reverse a finding of fact by the BIA “only when the record compels a reversal; the mere fact that the record may support a contrary conclusion" }, { "docid": "1387053", "title": "", "text": "traveled from and to Nigeria, observing the usual passport requirement each time, and that he lived in the Gambia for a number of years without seeking asylum. Although Alanwoko asserts that going to the police after the 1998 incident and the 2001 shooting would have been futile, the IJ’s conclusion otherwise is supported by Alanwoko’s own testimony that the police helped him after the 1999 beating incident and that he was not afraid to reenter Nigeria in 2001 before the shooting took place. Accordingly, we conclude that there is substantial evidence in the original record to support the agency’s decision, and we therefore deny the petition for review. See Setiadi v. Gonzales, 437 F.3d 710, 713-14 (8th Cir.2006) (denying petition for review of IJ’s denial of asylum); Menjivar v. Gonzales, 416 F.3d 918, 922 (8th Cir.2005) (same). Because Alanwoko did not satisfy his burden on the asylum claim, and because he is not asserting that torture would occur for a reason other than his religion, the IJ did not err by denying withholding of removal or CAT relief. See Falaja, 418 F.3d at 897; Samedov v. Gonzales, 422 F.3d 704, 708-09 (8th Cir.2005). III. Motion to Reopen Following the BIA’s affirmance of the IJ’s decision, Alanwoko filed a motion to reopen the removal proceedings. The decision to grant a motion to reopen is discretionary. Alemu v. Mukasey, 509 F.3d 907, 909 (8th Cir.2007). The petitioner must “state the new facts that will be proven at a hearing to be held if the motion is granted.” 8 U.S.C. § 1229a(c)(7)(B). Additionally, the petitioner has the burden of establishing that if the motion is granted, the new evidence would likely change the result of the proceedings. Jalloh v. Gonzales, 423 F.3d 894, 899 (8th Cir.2005). In support of his motion, Alanwoko filed several newspaper articles reporting on the attempted shooting of Obafemi Mar tins that occurred in June of 2007. Martins is a prominent soccer player from Nigeria, and although the articles did not indicate Martins’s religion or the religion of the attackers, Alanwoko attested to the fact that Martins is a" }, { "docid": "23592782", "title": "", "text": "22, 1999 the IJ rejected the petitioner’s application for asylum and withholding of removal, finding that he was not credible. Koudriachov appealed the decision to the BIA. On March 26, 2008 the BIA dismissed the appeal. The BIA assumed the petitioner was credible, but found he had nonetheless failed to establish that he was persecuted or fears persecution on account of any ground protected under the INA. Ninety days later, petitioner filed a timely motion to reopen with the BIA in which he offered new evidence in the form of an expert affidavit of a former KGB intelligence officer, Yuri Shvets, and, for the first time, requested relief under CAT. On December 12, 2003 the BIA denied the motion to reopen. Koudriachov now petitions for review of the BIA’s dismissal of his appeal from the IJ’s February 22, 1999 decision and the BIA’s denial of his motion to reopen. We grant the petition in part, and dismiss in part. DISCUSSION I Overview of Applicable Law Where, as here, the BIA does not adopt the IJ’s decision to any extent, we review only the decision of the BIA. See Chen v. Bureau of Citizenship & Immigration Servs., 470 F.3d 509, 513 (2d Cir.2006). We review de novo the BIA’s interpretation of the law as well as its application of the law to the facts. See Tanov v. INS, 443 F.3d 195, 198 (2d Cir.2006). When the BIA interprets ambiguous language in the INA in a precedential opinion issued by a three judge panel, we defer to that interpretation so long as it is reasonable. See Rotimi v. Gonzales, 473 F.3d 55, 56-58 (2d Cir.2007) (per curiam); Chevron U.S.A. Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Factual findings are reviewed under the substantial evidence standard and are upheld when they are supported in the record by reasonable, substantial, and probative evidence. See Islami v. Gonzales, 412 F.3d 391, 396 (2d Cir.2005). To qualify as a “refugee,” an asylum applicant must establish that he or she has been persecuted in the past," }, { "docid": "22745732", "title": "", "text": "would be subjected to torture on return to Nepal. Shrestha timely petitioned for review. He has conceded on appeal that his asylum claim was time barred. Therefore, we lack jurisdiction to review Shrestha’s petition as to his asylum claim and we dismiss that part of Shrestha’s petition for review. See Ramadan v. Gonzales, 479 F.3d 646, 649-50 (9th Cir.2007). We next address Shrestha’s claims for withholding of removal and for CAT relief, over which we do have jurisdiction. II When the BIA conducts its own review of the evidence and law rather than adopting the IJ’s decision, our review “is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006) (quoting Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000)). But when, as here, the BIA’s “phrasing seems in part to suggest that it did conduct an independent review of the record,” but the BIA’s analysis on the relevant issues is confined to a “simple statement of a conclusion,” we “also look to the IJ’s oral decision as a guide to what lay behind the BIA’s conclusion.” Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir.2000). Ill We review for substantial evidence the BIA’s determination that Shrestha is not eligible for withholding of removal. Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir.2007). The BIA affirmed the IJ’s denial of Shrestha’s withholding of removal claim on the basis of the IJ’s adverse credibility determination, and we review adverse credibility determinations under the substantial evidence standard. Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir.2009). To qualify for withholding of removal, a petitioner must establish a “clear probability” that his “life or freedom would be threatened” if he returned to his homeland on account of “race, religion, nationality, membership in a particular social group, or political opinion.” Ahmed, 504 F.3d at 1199 (citations omitted). Eligibility for withholding of removal can be established by demonstrating past persecution, see id., or by “demonstratfing] ... a subjective fear of persecution in the future ... that ... is objectively reasonable,”" }, { "docid": "22437006", "title": "", "text": "by the Indonesian government or any of its agents on account of his religious beliefs. Consistent with these findings, the IJ denied the cross-application for asylum, withholding of removal, and protection under CAT; ordered the petitioner removed; and designated Indonesia as the country of removal. The BIA upheld the IJ’s decision, concluding that the petitioner had failed to establish past persecution, a well-founded fear of future persecution, or a sufficient likelihood that he would be subjected to torture upon his return to Indonesia. This timely petition for judicial review followed. II. Discussion We start—and end'—with the denial of the petitioner’s application for asylum. In reviewing the BIA’s denial of an asylum application, we examine its findings of fact, including its credibility determinations, to ascertain whether those findings are supported by substantial evidence in the record. See Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005); Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir.2005). Under this highly deferential standard, we must accept the BIA’s findings so long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Absent an error of law, we can overrule the BIA’s ensuing decision only if the evidence “points unerringly in the opposite direction.” Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004). The petitioner bears the burden of establishing that he qualifies for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i); see also Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.2004). To qualify as a refugee within the meaning of the Immigration and Nationality Act, an asylum seeker must show that he cannot return to his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Upon a satisfactory showing of past persecution, a rebuttable presumption arises that a petitioner’s fear of future persecution is well-founded. Makhoul, 387 F.3d at 79. The Immigration and Nationality Act provides no precise definition of “persecution.” The" }, { "docid": "23579201", "title": "", "text": "voluntarily depart, and thus the IJ denied voluntary departure. In a per curiam order, the BIA affirmed the IJ’s credibility finding and held that the incidents described by the Quomsiehs were insufficient — singularly or cumulatively — to rise to the level of persecution. The BIA further held that the Quomsiehs demonstrated a subjective fear of returning to the West Bank but had failed to show their fear was objectively reasonable. The Quomsiehs contend on appeal that (1) the IJ and BIA erred in denying their application for asylum, withholding of removal, and protection under CAT because they established past persecution and a well-founded fear of future persecution, (2) the record evidence supports a finding that they would more likely than not suffer torture if removed, and thus they are entitled to relief under CAT, and (3) the BIA failed to review the IJ’s denial of voluntary departure, therefore the matter should be remanded to the BIA for proper consideration. We review a BIA’s factual decision under the substantial evidence standard, reversing where petitioners demonstrate “that the evidence was so compelling that no reasonable fact finder could fail to find in favor of the petitioner[s].” Turay v. Ashcroft, 405 F.3d 663, 667 (8th Cir.2005); see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”). Where, as here, the BIA adopts the IJ’s decision and adds its own reasoning, we review both decisions together. See Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir.2006). Asylum may be granted to a refugee. 8 U.S.C. § 1158(b)(1)(A). A “refugee” is defined as a person who is outside his native country and is unable or unwilling to return to his native country “because of persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “A well-founded fear is one that is both subjectively genuine and objectively reasonable.” Feleke v. INS, 118 F.3d 594, 598 (8th Cir.1997). Subjectively, the petitioner must demonstrate that" } ]

[ { "docid": "15344993", "title": "", "text": "Commuter R.R., supra, the court ordered a new trial on damages, concluding that a $650,000 verdict was excessive where plaintiffs primary injury was ulnar nerve neuropathy which caused numbness in two fingers and the web of the thumb in the plaintiffs non-dominant hand. In Smith v. Saviolis, 136 A.D.2d 621, 523 N.Y.S.2d 868 (2d Dep’t 1988), the court ruled that a jury verdict of $93,500 to a plaintiff who suffered from ulnar sensory nerve entrapment in her wrist resulting from an automobile accident was not excessive as a matter of law. Two cases involving carpal tunnel syndrome also are instructive. In Schare v. Welsbach Electric Corp., 138 A.D.2d 477, 526 N.Y.S.2d 25 (2d Dep’t 1988), the Appellate Division reversed the trial court’s order, holding that it inappropriately exercised its discretion in setting aside a jury verdict of $65,000 and entering a judgment of $125,000 based on plaintiffs carpal tunnel syndrome. In Silverstein v. Harmonie Club of the City of New York, 173 A.D.2d 378, 569 N.Y.S.2d 965 (1st Dep’t 1991), a $100,000 verdict was held adequate where plaintiffs primary injury was carpal tunnel syndrome. Finally, illustrative of cases in which courts have evaluated pain and suffering damages to plaintiffs with back injuries are the following eases. In Gumbs v. Pueblo Int’l, Inc., 823 F.2d 768 (3d Cir.1987), where the plaintiff injured her back while shopping, the court held that the verdict reduced by the trial court from $900,000 to $575,000 remained excessive and ordered a new trial on damages or, in the alternative, required plaintiff to accept remittitur in the amount of $235,000. Like D’Amato, Gumbs had difficulty with household chores and was unable to enjoy activities as she had before her accident. However, unlike the plaintiff in this case, Gumbs did not miss even a day of work as a result of her accident. In Williams v. Martin Marietta Alumina, Inc., 817 F.2d 1030 (3d Cir.1987), involving a back injury with limited clinical evidence of injury, the court ordered a new trial on damages, holding that an award of $600,000 was excessive where, of the total award, $317,000 was" } ]

[ { "docid": "9810130", "title": "", "text": "$200,000, respectively); Lemberger v. City of New York, 211 A.D.2d 622, 621 N.Y.S.2d 625 (2d Dep’t 1995) (seventy-three year old plaintiff sustained tears to the interior and posterior portions of both the medial and lateral menisci of left knee; award of $400,000 for past and future pain and suffering reduced to $300,000); Burton v. New York City Housing Auth., 191 A.D.2d 669, 595 N.Y.S.2d 807 (2d Dep’t 1993) (twenty-six year old plaintiff sustained a knee injury consisting of a ruptured meniscus and related damage to the knee; court applied “materially deviates” test and reduced the award of $525,000 for total pain and suffering to $262,500); Castellano v. City of New York, 183 A.D.2d 800, 584 N.Y.S.2d 114 (2d Dep’t 1992) (plaintiff slipped on an icy sidewalk, resulting in an injury to his knee which required two arthroscopic surgeries and forced him to retire from his job as a police officer; jury award of $500,000 for pain and suffering was found to be excessive and court ordered remittitur of damages over $200,000); Bisbee v. Independent Coach Corp., 182 A.D.2d 661, 582 N.Y.S.2d 255 (2d Dep’t 1992) (affirming award of $253, 000 for injury to knee which required several operations and procedures to repair and alleviate pain); Stern v. Calzado, 163 A.D.2d 299, 557 N.Y.S.2d 156 (2d Dep’t 1990) (affirming award of $500,000 .for pain and suffering for a fractured rib, chon-dromalacia of the left patella, and an'injury to the back); Gonzalez v. Manhattan and Bronx Surface Transit Operating Auth., 160 A.D.2d 420, 554 N.Y.S.2d 116 (1st Dep’t 1990) (award of $1.2 million for pain and suffering for torn knee cartilage sustained in car accident was excessive and ordered reduced to $600,000); Menga v. Raquet, 150 A.D.2d 434, 541 N.Y.S.2d 43 (2d Dep’t 1989) (affirming award of $350,000 for cartilage damage to knee); Rose v. Rose, 148 A.D.2d 693, 540 N.Y.S.2d 204 (2d Dep’t 1989) (award of $295,-000 for three fractured vertebrae and soft tissue damage to the knee was excessive and should be reduced to $175,000); Tejada v. City of New York, 129 A.D.2d 697, 514 N.Y.S.2d 459 (2d Dep’t 1987)" }, { "docid": "3626577", "title": "", "text": "inferences in favor of the appellee,” Wheatley v. Ford, 679 F.2d 1037, 1039 (2d Cir.1982) (citations omitted), and we “accord substantial deference to the jury’s determination of factual issues.” Martell v. Boardwalk Enters., 748 F.2d 740, 750 (2d Cir.1984). Nevertheless, in the federal courts, a judgment cannot stand “where the damages awarded are so excessive ‘as to shock the judicial conscience.’ ” Wheatley, 679 F.2d at 1039. In determining whether a particular award is excessive, courts have reviewed awards in other cases involving similar injuries, “bearing in mind that any given judgment depends on a unique set of facts and circumstances.” Nairn v. Nat’l R.R. Passenger Corp., 837 F.2d 565, 568 (2d Cir.1988). In Castellano v. State, 183 A.D.2d 800, 584 N.Y.S.2d 114 (2d Dep’t 1992), the plaintiff slipped on an icy sidewalk, resulting in an injury to his knee which required two arthroscopic surgeries and forced him to retire from his job as a police officer. The court found the jury’s award of $500,000 for pain and suffering to be excessive and ordered remittitur of damages over $200,000. In Tejada v. City of New York, 129 A.D.2d 697, 514 N.Y.S.2d 459 (2d Dep’t 1987), the plaintiff sustained injuries similar to those here: an injured knee which required several surgical procedures and resulted in chronic pain in her back and knee. The court found an award of $1,426,431 to be “clearly excessive” and ordered it reduced to $700,000. Id., 514 N.Y.S.2d at 460. In light of these awards and all of the circumstances of this case, we believe that the jury’s award of $1,500,000 for Scala’s past and future pain and suffering is so excessive as to “shock the judicial conscience.” While a jury has broad discretion in measuring damages, it “ ‘may not abandon analysis for sympathy for a suffering plaintiff and treat an injury as though it were a winning lottery ticket.’ ” Nairn, 837 F.2d at 568 (quoting Gumbs v. Pueblo Int'l, Inc., 823 F.2d 768, 773 (3d Cir.1987)). It appears that the jury did just that, and therefore the award cannot stand. Having reviewed the evidence" }, { "docid": "15130752", "title": "", "text": "may not sustain the judgment “where the damages awarded are so excessive ‘as to shock the judicial conscience.’ ” Id. (quoting Martell v. Boardwalk Enters., 748 F.2d 740, 750 (2d Cir.1984) (citation omitted)). As a court sitting in diversity, our determination as to whether an award of damages is excessive is accomplished by comparing the challenged award with jury awards “condoned by the courts of the state whose substantive law governs the rights of the parties, in this case New York State.” Martell, 748 F.2d at 750; see Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir.1990). In accordance with Judge Knapp’s instruction, the jury rendered separate awards for deprivation of liberty and pain and suffering. Thus, the damages for deprivation of liberty redress the denial of free movement and the violation done to Gardner’s dignity as a result of the unlawful detention, and not the physical and mental injuries arising from the incident. The $150,000 awarded for deprivation of liberty exceeds awards sanctioned in similar New York cases. E.g., Malte v. New York, 125 A.D.2d 958, 510 N.Y.S.2d 353 (4th Dep’t 1986) (mem.) ($125,000 reduced to $35,000 for teacher falsely arrested at school, strip searched, incarcerated 10 hours and characterized in news reports as child beater), appeal denied, 69 N.Y.2d 607, 507 N.E.2d 320, 514 N.Y.S.2d 1024 (1987); Orndorff v. De Nooyer Chevrolet, Inc., 117 A.D.2d 365, 503 N.Y.S.2d 444 (3d Dep’t 1986) (affirming $50,000. for false arrest where plaintiff held in custody for 12 hours and ridiculed in newspaper); Palmquist v. City of Albany, 112 A.D.2d 624, 492 N.Y.S.2d 487 (3d Dep’t 1985) (affirming $18,500 for detention of 3 hours and physical injuries); Woodard v. City of Albany, 81 A.D.2d 947, 439 N.Y.S.2d 701 (3d Dep’t 1981) (mem.) ($16,000 reduced to $7,500 for 5 hours in jail); Klein v. City of New York, No. 48884/81 (App.Term, 1st Dep’t Mar. 9, 19.82) ($30,000 for false arrest reduced to $15,000 for custody of 16 hours).. The guidance provided by these cases confirms our impression that the evidence cannot justify the magnitude of the award for deprivation of liberty. Accordingly, we" }, { "docid": "6703408", "title": "", "text": "cites the New York Judicial Review of Damages, which describes James v. State of New York, Claim No. 76912 (N.Y.Ct.Cl. Feb. 18, 1999), see 9 J.R.D. 13, as a case in which the New York Court of Claims awarded $250,000 for past pain and suffering to a plaintiff who suffered significant depressed open skull fractures, causing mild-to-moderate cognitive impairment, hearing impairment on one side, facial nerve damage and weakness on one side, residual weakness in his limbs, and impaired balance and coordination. But that case reflects simply the amount that the trial court awarded; it did not hold that $250,000 was the maximum allowable under New York law. The County’s citation of Cruz v. City of New York, 201 A.D.2d 606, 607 N.Y.S.2d 969 (2d Dep’t 1994) (mem.), in which the Appellate Division upheld a jury’s $250,000 award, is similarly wide of the mark, for an affirmance of a verdict is not a holding that a larger verdict would have been impermissible. In short, the County has provided us no basis for a conclusion that the district court’s refusal to reduce the award for Rangolan’s past pain and suffering below $300,000 was an abuse of discretion. With respect to future pain and suffering, the district court found that the jury’s award of $1,250,000 deviated materially from what would be reasonable compensation but that Rangolan’s ongoing injuries, primarily headaches and the risk of future seizures, warranted an award of $500,000. See Rangolan I, 51 F.Supp.2d at 243. In reaching that conclusion, the district court reviewed several cases in which New York courts had found jury awards for future pain and suffering, resulting from injuries whose severity could be considered similar to the severity of those suffered by Rangolan, to be excessive. In those cases, the awards allowed by the appellate courts ranged from $130,000 to $500,000. See Holland v. Gaden, 260 A.D.2d 604, 604-05, 688 N.Y.S.2d 668, 669 (2d Dep’t 1999) (mem.) (award of $500,000 reduced to $250,000 for “fractured tibia, fibula, and glenoid”); Martino v. Triangle Rubber Co., 249 A.D.2d 454, 671 N.Y.S.2d 524 (2d Dep’t 1998) (mem.) (award of" }, { "docid": "23063529", "title": "", "text": "(1988). The plaintiff in Vitale did not sustain any chronic physical injury, and was not even forced to undergo the indignity of a criminal trial. Yet he was awarded, inter alia, $750,000 for the humiliation of malicious prosecution by the defendant police officer. In Osterczy v. New York City Transit Auth., No. 17610/82 (Sup.Ct. Nov. 3, 1983), aff'd mem., 107 A.D.2d 1091, 485 N.Y.S.2d 158 (1st Dep’t 1985), the court entered judgment on a jury verdict which awarded plaintiff $500,000 for a wrenched neck due to a sudden stop on a subway train. See also Loughman v. A.W. Flint Co., 132 A.D.2d 507, 518 N.Y.S.2d 389 (1st Dep’t 1987) ($640,000 award reinstated for fall from ladder where plaintiff sustained unspecified “serious back injuries”), app. denied, 70 N.Y.2d 613, 519 N.E.2d 343, 524 N.Y.S.2d 432 (1988). With respect to mental distress damages, we have been willing to uphold substantial awards where warranted. Hughes v. Patrolmen’s Benevolent Ass’n, 850 F.2d 876, 883 (2 Cir.) ($225,000 in emotional distress damages in light of concerted harassment was not excessive even though no permanent harm resulted), cert. denied, 109 S.Ct. 495 (1988). As for punitive damages, it is not even necessary to go beyond our § 1983 cases to determine that the $150,000 award in the instant case is within reasonable range. In Hughes, supra, 850 F.2d at 880-81, we held that defendants’ vendetta against plaintiff merited a punitive damage award of $350,-000, including $175,000 against an individual defendant. In O’Neill, supra, 839 F.2d at 13, we held that a $185,000 punitive assessment against three police officers was proper in light of the beating that the officers gave plaintiff about the face while he was handcuffed. In contrast to the instant case, the facts of O’Neill involved no criminal prosecution or permanent physical or emotional injury. Appellants’ brief collects a sizable list of cases in which either judgment was entered on a smaller jury verdict or the district or appellate court ordered remittitur. We stress, however, that our task is not to balance the number of high and low awards and reject the verdict in" }, { "docid": "4873269", "title": "", "text": "and Cruz appear to have abandoned this claim because Hochstadt failed to address it in her brief. (See generally Dkt. No. 228: Hochstadt Br.; see cases cited at pages 41-42 n. 32 above.) . As State Defendants point out (Dkt. No. 218: State Defs. Br. at 20 n. 7), plaintiffs’ contention that they only may challenge the hearing officer's excess use of authority, bias or corruption in Article 75 proceedings is incorrect. Courts deciding Article 75 petitions generally only may vacate arbitration decisions upon \"a showing of ‘misconduct, bias, excess of power or procedural defects.' ” Lackow v. Dep't of Educ., 51 A.D.3d 563, 567-68, 859 N.Y.S.2d 52, 56 (1st Dep't 2008) (deciding Article 75 petition to vacate a § 3020-a hearing decision). However, where a statute such as Education Law § 3020-a (5) mandates arbitration, the arbitrators' determination is subject to \"closer judicial scrutiny” under CPLR 7511(b) than it would receive had the arbitration been conducted voluntarily. An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious. “In addition, [CPLR] article 75 review questions whether the decision was rational or had a plausible basis.” Saunders v. Rockland Bd. of Co-op. Educ. Servs., 62 A.D.3d 1012, 1013, 879 N.Y.S.2d 568, 569 (2d Dep’t 2009) (citations omitted) (deciding Article 75 petition to vacate a § 3020-a hearing decision); accord, e.g., Lackow v. Dep’t of Educ., 51 A.D.3d at 567-68, 859 N.Y.S.2d at 56. . The Penkovsky plaintiffs withdrew the first cause of action containing this claim. (See Dkt. No. 230: Penkovsky Notice of Voluntary Withdrawal ¶ 1.) . It is not clear from the fourth amended complaint whether or not Robinson changed the grades as instructed. {See page 20 & n. 10 above.) . Indeed, Adams’ attorney, Ms. Hochstadt, conceded at the August 6, 2010 conference that the Court could, and should, dismiss any of Adams' and Cruz’s claims that were not addressed in her brief. (8/6/10 Conf. Tr. at 7-8.) .Robinson did not make a similar assertion. (See page 20 above.) . The Hochstadt plaintiffs asserted this claim against not only the City" }, { "docid": "23519207", "title": "", "text": "City of Peekskill, 828 F.2d 104, 109 (2d Cir.1987); DeCintio v. Westchester County Medical Ctr., 821 F.2d 111, 118 n. 12 (2d Cm.), cert. denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987); and Moodie, 861 F.Supp. at 12-13 (collecting cases). Moodie attempts to dismiss this New York authority on the basis that the Court of Appeals “has never intimated its view as to what type of defense [§ 297(9) ] creates.” While this may be literally true, because no reported New York case has presented the delayed assertion of a § 297(9) bar that made the issue pertinent, Emil and its Court of Appeals progeny certainly speak in jurisdictional terms. Emil itself precludes Moodie “from commencing an action in court based on the same incident.” 49 N.Y.2d at 969, 406 N.E.2d at 745, 428 N.Y.S.2d at 887. Further, Emil has consistently been construed as a jurisdictional ruling by the New York Appellate Division courts. See Kuperman v. Association of the Bar, 118 A.D.2d 547, 547-48,499 N.Y.S.2d 8, 9 (2d Dep’t 1986) (mem.) (prior filing of administrative complaint precluded “commencing an action,” citing Emil); Whitney v. State Human Rights Appeal Bd., 105 A.D.2d 991, 992, 482 N.Y.S.2d 142, 143 (3d Dep’t 1984) (mem.) (in view of prior court action, Division of Human Rights properly concluded that it lacked “jurisdiction,” citing Emil); Spoon v. American Agriculturalist, Inc., 103 A.D.2d 929, 930, 478 N.Y.S.2d 174, 175 (3d Dep’t 1984) (mem.) (prior administrative proceeding “deprived the court of subject matter jurisdiction,” citing Emil); McGrath v. State Human Rights Appeal Board, 90 A.D.2d 916, 916, 456 N.Y.S.2d 874, 875-76 (3d Dep’t 1982) (mem.) (prior court action “made it jurisdic-tionally impossible” for Division of Human Rights to address complainant’s grievance, citing Emil); see also Horowitz v. Aetna Life Ins., 148 A.D.2d 584, 585, 539 N.Y.S.2d 50, 52 (2d Dep’t 1989) (mem.) (prior filing of administrative complaint deprived court of “subject matter jurisdiction”). Magini v. Otnorp, Ltd., 180 A.D.2d 476, 579 N.Y.S.2d 669 (1st Dep’t) (mem.), appeal denied, 80 N.Y.2d 751, 599 N.E.2d 691, 587 N.Y.S.2d 287 (1992), is not to the contrary. The" }, { "docid": "9559125", "title": "", "text": "of $300,700 for these injuries is excessive. Our examination of other police misconduct eases is instructive. In King v. Maori, 993 F.2d 294 (2d Cir.1993), a jury awarded $75,000 in compensatory damages to a victim of malicious prosecution who had been beaten while in custody and confined for two months. Id. at 296-97. In Gentile v. County of Suffolk, 926 F.2d 142 (2d Cir.1991), we sustained an aggregate jury award of $150,-000 for police misconduct that resulted in several days of wrongful confinement and the pendency of criminal charges for six years. Id. at 144-45. In Gardner v. Federated Department Stores, Inc., 907 F.2d 1348 (2d Cir.1990), we reduced to $50,000 a compensatory award of $150,000 for loss of liberty that lasted several hours of one night. Id. at 1350, 1353. Gardner noted several New York cases that had upheld smaller awards for wrongful detentions lasting no more than one day. Id. at 1353 (citing, e.g., Malte v. State, 125 A.D.2d 958, 960, 510 N.Y.S.2d 353, 353-54 (4th Dep’t 1986) ($125,000 award reduced to $35,000 for ten hours of detention)); Orndorff v. De Nooyer Chevrolet, Inc., 117 A.D.2d 365, 368, 503 N.Y.S.2d 444, 447 (3d Dep’t 1986) (affirming $50,000 award for 12 hours of detention). Where higher awards have been upheld, significant aggravating circumstances have been present. See Vitale v. Hagan, 132 A.D.2d 468, 468, 517 N.Y.S.2d 725, 726 (1st Dep’t 1987) ($750,000 award, unchallenged on appeal, for malicious prosecution initiated by police officer in reaction to involvement in traffic accident with motorist), aff'd as modified, 71 N.Y.2d 955, 528 N.Y.S.2d 823, 524 N.E.2d 144 (1988); see also Hughes v. Patrolmen’s Benevolent Ass’n of the City of New York, 850 F.2d 876, 884 (2d Cir.) ($575,-000 for protracted course of harassment by police officers against fellow officer), cert. denied, 488 U.S. 967, 109 S.Ct. 495, 102 L.Ed.2d 532 (1988). In the pending case, the aggregate award is excessive, and appears highly likely to have resulted from duplication of compensation, an issue to which we now turn. III. Risk of Duplicative Compensatory Awards A basic principle of compensatory damages is that" }, { "docid": "16695187", "title": "", "text": "with her fiance. Id. 615 N.Y.S.2d at 532. She further testified that she saw a psychiatrist five or six times. Id. This evidence, particularly of the visits to a psychiatrist, was much stronger than the evidence in this case but the Appellate Division reduced the award for mental anguish and humiliation from $25,000.00 to $10,-000.00. Id. 615 N.Y.S.2d at 533; cf. Gleason v. Callanan Indus. Inc., 203 A.D.2d 750, 752, 610 N.Y.S.2d 671, 673 (3d Dep’t 1994) (upholding a jury award, under the New York Human Rights Law, of $54,000.00 in compensatory damages for emotional distress for retaliatory discharge where the plaintiffs testimony, which was corroborated by other witnesses’ testimony, established that she suffered from irritable bowel syndrome, pains in her sides, insomnia, migraines and depression, and that, because of these ailments, she sought medical treatment). At oral argument, counsel for the plaintiff conceded that the most common award of compensatory damages under the New York Human Rights Law is between $5,000.00 and $15,000.00. However, counsel argued that the range of permissible awards for emotional injury is much greater than this and that because the jury’s award falls within this broader range, the Court should permit it to stand. See, e.g., Petramale v. Local No. 17, Laborers’ Int'l Union of North America, 847 F.2d 1009, 1012-13 (2d Cir.1988) (reducing $200,000.00 compensatory damage award under the LMRDA to $100,000.00 where there was no expert medical testimony or testimony about the duration of the plaintiffs nervousness and sleeplessness and the plaintiff did not seek medical attention). “[A] verdict is excessive as a matter of law if it exceeds any rational appraisal or estimate of the damages that could have been based upon the evidence before the jury.” Borja-Fierro, 1994 WL 240360 at *3 (citing Schneider v. National R.R. Passenger Corp., 987 F.2d 132, 137 (2d Cir.1993)). Under this definition, the jury’s compensatory damages award is excessive — the evidence adduced at trial simply cannot justify an award that is so much greater than the more typical awards approved under the Human Rights Law. The plaintiff’s argument notwithstanding, there is nothing inconsistent with" }, { "docid": "23411224", "title": "", "text": "had been since the springtime. Harry concluded, “His mother and I are both happy.” Plaintiff presented no evidence that the accident had interfered with Brent’s career plans or any evidence that the loss of his arm had any impact on Brent’s earnings or his future earning ability. In sum, plaintiff showed that Brent lost his left — non-dominant—arm, suffered other relatively minor injuries, and suffered some psychological problems. The evidence did not show, however, any diminution of Brent’s earning power, did not show extreme pain and suffering, did not show enduring emotional or physical pain; it did show Brent’s reasonable return to an active, athletic life. In light of the evidence, the award to Brent of $2,000,000 appears to be extremely high. This impression is enhanced when we compare that award with awards for similar injuries condoned by New York state courts. See, e.g., Novell v. Carney Electric Construction Corp., 123 Misc.2d 1089, 1090, 1096-97, 476 N.Y.S.2d 241, 244, 247-48 (Sup.Ct.N.Y. County 1984) (apparently reducing award for pain and suffering for loss of leg from $7,000,000 to approximately $630,000); Le Bel v. Airlines Limousine Service, Inc., 92 A.D.2d 996, 461 N.Y.S.2d 474 (3d Dep’t 1983) (upholding award of $800,000 — which included compensation for substantial economic loss — for crushing of leg that would require amputation, had caused and would continue to cause pain, and had required five extensive hospitaliza tions); Terry v. State, 79 A.D.2d 1069, 1069, 435 N.Y.S.2d 389, 390 (3d Dep’t 1981) (increasing to $400,000 an award1 to 18-year-old boy whose left arm was rendered useless and who had suffered and was expected to suffer “excruciating pain” in the future); Prata v. National Railroad Passenger Corp., 70 A.D.2d 114, 420 N.Y. S.2d 276 (1st Dep’t) (reducing award for loss of hand from $1,250,000 to $700,000), appeals dismissed, 48 N.Y.2d 975, 425 N.Y.S.2d 1029, 401 N.E.2d 433 (1979); Dubicki v. Maresco, 64 A.D.2d 645, 407 N.Y. S.2d 66 (2d Dep’t 1978) (upholding award of $810,000 for deeply lacerated groin and injury resulting in complete disuse of right leg with threat of amputation); Kraft v. Carborundum Co., 57 A.D.2d" }, { "docid": "12180292", "title": "", "text": "N.Y.S.2d 512 (3rd Dep’t 1991) (performing review under § 5501(c) and awarding the “highest amounts that can be justified”); see also Singleton, 496 F.Supp.2d at 394; In re New York Asbestos Litig., 847 F.Supp. at 1096; Balmaceda v. Perez, 182 A.D.2d 983, 984, 581 N.Y.S.2d 925 (3d Dep’t 1992). “[Reduction [of a jury award for damages] can only be permitted so far as the ‘maximum amount that would be upheld ... as not excessive’ and not a penny less.” In re New York Asbestos Litig., 847 F.Supp. at 1096 (quoting Earl, 917 F.2d at 1330). Plaintiffs argue that the entire pain and suffering award should be affirmed, because the notion of what is “reasonable compensation” inevitably shifts over time; otherwise, damages awards — if tied to awards in prior cases — would remain static indefinitely. Of course, relying strictly and inflexibly on past precedent alone would result in static damages for future plaintiffs. See Wing Tat Realty, 259 A.D.2d at 374, 687 N.Y.S.2d 99. But plaintiffs’ argument ignores the mandate of § 5501(c), which requires a review of comparable cases in deciding whether a damages award deviates materially from reasonable compensation. Moreover, the standard under § 5501(c) is not whether an award deviates at all from past awards — it is whether an award deviates materially from reasonable compensation. Thus, jury awards for pain and suffering will not inevitably remain constant over time, contrary to the “parade of horribles” that plaintiffs contend will result if this Court looks to damages awards in comparable cases in assessing whether the award in this case is excessive. (Dkt. # 70, Pis.’ Mem. at 3.) Furthermore, the awards cited above were all made within the past few years, between 2003 and 2007. They are appropriate comparators. In light of the pain and suffering awards approved in recent cases, I conclude that the jury’s aggregate pain and suffering award of $20 million to Mr. Okraynets (past award of $5 million, future award of $15 million) is excessive under § 5501(c) because it deviates materially from what would be reasonable compensation. I further conclude that the" }, { "docid": "2273426", "title": "", "text": "by this analysis. . The Court considers the reasonableness of the damages award under both federal and state law, because defendants are liable to plaintiff on both federal and state claims. . See, e.g., Bender v. City of New York, 78 F.3d 787, 792 (2d Cir.1996) (awarding $150,000, reduced from $300,000 upon jury verdict, arising out of a false arrest and malicious prosecution, where plaintiff's injuries consisted essentially of a minor blow to the mouth, 24 hours’ confinement, the pendency of criminal charges for six months, and some \"nightmares and occasional loss of sleep”); Gardner v. Federated Dep’t Stores, 907 F.2d 1348, 1354 (2d Cir.1990) (sanctioning award of $200,000, $50,000 for deprivation of liberty and $150,000 for past pain and suffering, where plaintiff was falsely arrested and held in custody for approximately eight hours, sustaining an injury to the jaw and emotional distress); Hughes v. Patrolmen’s Benevolent Assoc., 850 F.2d 876, 879, 884 (2d Cir.1988) (awarding $225,000 in emotional distress damages to a police officer harassed by fellow officers, where no permanent harm resulted); Komlosi v. Fudenberg, 2000 WL 351414, *13-16 (S.D.N.Y. Mar. 31, 2000) (awarding plaintiff $500,000 for non-economic loss arising out of false arrest and sexual harassment, where plaintiff psychologist was incarcerated for two weeks, required years of psychiatric treatment, and was so concerned about the possibility of the recurrence of false allegations that he was unable to resume his career); Martinez v. Gayson, No. 95 CV 3788, 1998 WL 564385, at *6 (E.D.N.Y. June 30, 1998) (remitting award of compensatory damages from $310,000 to $160,000 in false arrest case where plaintiff suffered no physical injuries, only some humiliation, and was in custody for approximately five hours); Bert v. Port Authority of New York and New Jersey, 166 A.D.2d 351, 561 N.Y.S.2d 416, 417 (1st Dep't 1990) (awarding $100,000 to plaintiff for emotional distress where he was wrongfully detained by police officers for approximately three hours and humiliated before his young child); Orndorff v. De Nooyer Chevrolet, Inc., 117 A.D.2d 365, 503 N.Y.S.2d 444, 447-48 (3d Dep't 1986) (affirming $50,000 for false arrest where plaintiff was held in" }, { "docid": "2273427", "title": "", "text": "v. Fudenberg, 2000 WL 351414, *13-16 (S.D.N.Y. Mar. 31, 2000) (awarding plaintiff $500,000 for non-economic loss arising out of false arrest and sexual harassment, where plaintiff psychologist was incarcerated for two weeks, required years of psychiatric treatment, and was so concerned about the possibility of the recurrence of false allegations that he was unable to resume his career); Martinez v. Gayson, No. 95 CV 3788, 1998 WL 564385, at *6 (E.D.N.Y. June 30, 1998) (remitting award of compensatory damages from $310,000 to $160,000 in false arrest case where plaintiff suffered no physical injuries, only some humiliation, and was in custody for approximately five hours); Bert v. Port Authority of New York and New Jersey, 166 A.D.2d 351, 561 N.Y.S.2d 416, 417 (1st Dep't 1990) (awarding $100,000 to plaintiff for emotional distress where he was wrongfully detained by police officers for approximately three hours and humiliated before his young child); Orndorff v. De Nooyer Chevrolet, Inc., 117 A.D.2d 365, 503 N.Y.S.2d 444, 447-48 (3d Dep't 1986) (affirming $50,000 for false arrest where plaintiff was held in custody for 12 hours and ridiculed in a newspaper); cf. Vitale v. Hagan, 132 A.D.2d 468, 517 N.Y.S.2d 725, 726 (1st Dep’t 1987) (affirming award of $750,000 for malicious prosecution arising out of an altercation between a motorist and police sergeant as a result of which plaintiff was charged with assault and resisting arrest). . See, e.g., Mathie II, supra, 121 F.3d at 813-15 (upholding $250,000 in compensatory damages, including emotional damages arising out of PTSD, for sexual attack on plaintiff inmate by defendant security guard, with a reduction on account of the fact that his distress was caused in part by his participation in a murder for which he was incarcerated); Schneider v. Nat'l Railroad Passenger Corp., 987 F.2d 132, 137-39 (2d Cir.1993) (upholding jury verdict of $1.75 million including approximately $1 million in \"intangible damages” to compensate plaintiff for PTSD, depression, and organic brain syndrome arising out of physical attack); Smith v. Kmart Corp., 177 F.3d 19, 30-32 (1st Cir.1999) (upholding jury verdict of $500,000 for non-economic damages to plaintiff, specifically physical injury" }, { "docid": "12180282", "title": "", "text": "Hillebrandt, 239 A.D.2d 811, 813-14, 657 N.Y.S.2d 538, 540 (3d Dep’t 1997) (citations omitted). The “material deviation” standard of § 5501(c) “has been understood by both courts and commentators as providing courts with greater latitude than the former ‘shocks the conscience’ standard for reviewing and altering jury awards.” Asbestos Litig., 9 F.Supp.2d at 310 (citing Gasperini, 518 U.S. at 424-25, 116 S.Ct. 2211). A district court must examine the evidence underlying the award and compare the verdict to awards in similar cases. See, e.g., Bachir v. Transoceanic Cable Ship Co., 2002 WL 413918, at *11 (S.D.N.Y. Mar. 15, 2002). Nevertheless, great deference is given to the interpretation of evidence by a jury. See, e.g., Abar v. Freightliner Corp., 208 A.D.2d 999, 1001, 1002, 617 N.Y.S.2d 209 (3rd Dep’t 1994); see also Bachir, 2002 WL 413918 at *11 (refusing to grant a new trial and deferring to the jury because its award was not against the weight of the evidence, even though it was “on the higher end of the range”); Katt v. City of New York, 151 F.Supp.2d 313, 368 (S.D.N.Y.2001). Because awarding damages is the province of the jury, it is important for a court performing a § 5501(c) review of a pain and suffering damages award to identify the “upper limit” for such an award. See Asbestos Litig., 9 F.Supp.2d at 312. By so doing, a court can order remittitur only to the extent necessary to comply with the “deviates materially” standard, while still giving effect to as much of the jury’s award as possible. See Miraglia v. H & L Holding Corp., 36 A.D.3d 456, 456-57, 828 N.Y.S.2d 329 (1st Dep’t 2007) (awarding maximum amount supported by evidence); see also Singleton v. City of New York, 496 F.Supp.2d 390, 394 (S.D.N.Y.2007) (noting that a court should be as least intrusive as possible in reducing the amount of a jury award); In re New York Asbestos Litig., 847 F.Supp. 1086, 1096 (S.D.N.Y.1994) (stating that award should be maximum amount that would not be excessive). “Although possessing the power to set aside an excessive jury verdict, a trial court" }, { "docid": "18775948", "title": "", "text": "damages suffered by plaintiffs as a result of plaintiff Ronald Bat-tista’s injury incurred at the Midtown Post Office on February 13, 1991. Plaintiffs are awarded $12,593 to compensate for the lost past overtime wages of Ronald Battista; $19,638 to compensate for the lost future overtime wages of Ronald Battista; $29,-033.29 to compensate for the medical expenses of Ronald Battista ; $20,876 to compensate for the lost past base wages of Ronald Battista ; $125,000 to compensate Ronald Battista for non-economic losses including pain and suffering; and $10,000 to compensate Arlene Battista for loss of consortium. The parties are hereby ordered to settle a judgment reflecting the damage awards set forth in this Opinion and Order, and the Clerk of the Court shall enter such judgment. SO ORDERED. . \"Tr.” refers to the trial transcript. \"PX” refers to plaintiffs' exhibits. \"GX” refers to the Government’s exhibits. As is this Court's practice, all direct testimony at trial was submitted by affidavit. Accordingly, \"-Decl.” refers to the direct testimony of the witness in question. . As a threshold matter, we reject plaintiff's alternative theory of liability, founded on the Government's alleged violation of New York Labor Law § 240(1) (McKinney 1986). It is well settled that this statutory provision does not apply to the work performed by plaintiff here, namely, the splicing of telephone cables and picking up new phone lines in a building — particularly where no Government employee requested or directed the work. Cosentino v. LIRR, 201 A.D.2d 528, 607 N.Y.S.2d 720 (2d Dep't 1994); see also Giambalvo v. Nat’l R.R. Passenger Corp., 850 F.Supp. 166, 168-70 (E.D.N.Y.1994); Manente v. Ropost, Inc., 136 A.D.2d 681, 524 N.Y.S.2d 96 (2d Dep't 1988); Edwards v. Twenty-Four Twenty-Six Main Street Assocs., 195 A.D.2d 592, 601 N.Y.S.2d 11, 12-13 (2d Dep’t 1993); Kesselbach v. Liberty Haulage, Inc., 182 A.D.2d 741, 582 N.Y.S.2d 739 (2d Dep’t 1992). Moreover, even if New York Labor Law § 240(1) applied to the facts of this case, we are prohibited from applying this provision against the United States. The FTCA’s waiver of sovereign immunity is limited to negligent or wrongful" }, { "docid": "23595263", "title": "", "text": "bodily injuries, loss of earnings or business, and medical and legal expenses). At least one district court in this circuit appears to have used \"deprivation of liberty” in charging a jury to describe the intangible injuries to a person's dignity that could result from false imprisonment in order to distinguish those injuries from the pain and suffering attributable to diagnosed physical and mental injuries. See Gardner v. Federated Dep’t Stores, Inc., 717 F.Supp. 136, 137-38 (S.D.N.Y.1989), aff'd in part and vacated in part, 907 F.2d 1348 (2d Cir.1990). It seems to me more confusing than helpful to use \"deprivation of liberty,” the constitutional tort, to refer to a subset of the injuries that can result therefrom. . I do not read cases such as Hallenbeck v. City of Albany, 99 A.D.2d 639, 472 N.Y.S.2d 187 (3d Dep’t 1984) and Woodard v. City of Albany, 81 A.D.2d 947, 439 N.Y.S.2d 701 (3d Dep’t 1981), cited by the majority, see Maj. Op. at 126, to hold otherwise. In each of those cases, the courts vacated excessive jury awards in false arrest cases because plaintiffs failed to demonstrate \"substantial physical or mental injury,” ordering new trials unless the plaintiffs agreed to reduced verdicts of $10,000 and $7,500 respectively. Hallenbeck v. City of Albany, 99 A.D.2d at 640, 472 N.Y.S.2d at 189 (emphasis added); accord Woodard, v. City of Albany, 81 A.D.2d at 947, 439 N.Y.S.2d at 702. In neither case, however, did the court suggest that if the plaintiffs went to trial, the juries would have to award them some damages for lost liberty, even absent a showing of physical or mental injury. Similarly in Gardner v. Federated Department Stores, Inc., 907 F.2d at 1353, the case in which the district court labeled injuries to plaintiff's dignity as a \"deprivation of liberty,” this court ordered a new trial unless plaintiff accepted $50,000 in lieu of the jury's excessive award of $150,000. We did not, however, suggest that plaintiff could recover such a damage award without proof of any injury to her dignity. In fact, the evidence appears to have included specific proof of" }, { "docid": "12918079", "title": "", "text": "(“court should determine whether the award is ‘within reasonable range’”) (quoting Ismail)' Where a verdict is one for emotional distress, the Second Circuit is “willing to uphold substantial awards where warranted.” Ismail, 899 F.2d at 186 (citations omitted). B. Standards Applied Having reviewed compensatory damage awards in similar cases, the Court concludes that the jury’s award in this case is within a “reasonable range” and does not shock the conscience of the Court. See, e.g., Hughes v. Patrolmen’s Benevolent Ass’n, 850 F.2d 876, 883 (2d Cir.1988) ($225,000 in emotional distress damages in light of concerted harassment was not excessive even though no permanent harm resulted); Quinn v. Nassau County Police Dep’t, 53 F.Supp.2d 347, 362 (E.D.N.Y.1999) ($250,000 in compensatory damages for emotional distress from sexual orientation discrimination); Ramirez v. New York City Off-Track Betting Corp., No. 93 Civ. 0682(LAP), 1996 WL 210001, at *6 (S.D.N.Y. April 30, 1996) ($500,000 award does not shock the conscience in employment discrimination case where “[d]ramatic evidence was admitted at trial demonstrating that [defendant’s actions] aggravated plaintiffs psychological problems to such an extreme that he ceased to be able to function in society”), ajfd in relevant part, rev’d in part, 112 F.3d 38 (2d Cir.1997); Tiffany & Co. v. Smith, 224 A.D.2d 332, 638 N.Y.S.2d 454, 454 (1st Dep’t 1996) ($300,000 in compensatory damages under State Human Rights Law for emotional distress caused by “constant, egregious, and blatant” discriminatory conduct). Town of Hempstead v. State Div. of Human Rights, 233 A.D.2d 451, 649 N.Y.S.2d 942, 942 (2d Dep’t 1996) ($200,000 to $500,000 for six plaintiffs who suffered mental anguish due to. “lewd and offense” workplace harassment); New York City Transit Auth. v. State Div. of Human Rights, 185 A.D.2d 889, 181 A.D.2d 891, 581 N.Y.S.2d 426, 427 (2d Dep’t 1992) ($450,000 award under State Human Rights Law upheld where evidence supported a finding that plaintiffs mental anguish could persist for the rest of her life). The extreme nature of the psychological injuries suffered by Katt is comparable to those in the cited cases. Even the defendant’s own expert, Dr. Anderson, testified that after examining Katt" }, { "docid": "23063528", "title": "", "text": "1983 cases, reference to analogous personal injury awards is proper). We turn first to the compensatory damage award. Before we review the applicable case law, we address the district court’s criticism of Ismail for failing to seek treatment (other than at Bellevue Hospital on the day of the incident) for injuries that he claimed were chronic and permanent. Ismail adduced testimony from qualified medical experts which showed that, given the nature of the injuries, such treatment would not have helped. In view of that testimony, which the jury chose to credit, the court’s criticism seems unwarranted. Ismail also failed to seek counseling for his mental anguish, but explained that this failure was due to his ethnic and religious heritage rather than to a desire to exacerbate his damages. There are several New York cases where damage awards similar to that in the instant case were upheld. The most striking is Vitale v. Hagan, 132 A.D.2d 468, 517 N.Y.S.2d 725 (1st Dep't 1987), modified on other grounds, 71 N.Y.2d 955, 524 N.E.2d 144, 528 N.Y.S.2d 823 (1988). The plaintiff in Vitale did not sustain any chronic physical injury, and was not even forced to undergo the indignity of a criminal trial. Yet he was awarded, inter alia, $750,000 for the humiliation of malicious prosecution by the defendant police officer. In Osterczy v. New York City Transit Auth., No. 17610/82 (Sup.Ct. Nov. 3, 1983), aff'd mem., 107 A.D.2d 1091, 485 N.Y.S.2d 158 (1st Dep’t 1985), the court entered judgment on a jury verdict which awarded plaintiff $500,000 for a wrenched neck due to a sudden stop on a subway train. See also Loughman v. A.W. Flint Co., 132 A.D.2d 507, 518 N.Y.S.2d 389 (1st Dep’t 1987) ($640,000 award reinstated for fall from ladder where plaintiff sustained unspecified “serious back injuries”), app. denied, 70 N.Y.2d 613, 519 N.E.2d 343, 524 N.Y.S.2d 432 (1988). With respect to mental distress damages, we have been willing to uphold substantial awards where warranted. Hughes v. Patrolmen’s Benevolent Ass’n, 850 F.2d 876, 883 (2 Cir.) ($225,000 in emotional distress damages in light of concerted harassment was not excessive" }, { "docid": "15130753", "title": "", "text": "A.D.2d 958, 510 N.Y.S.2d 353 (4th Dep’t 1986) (mem.) ($125,000 reduced to $35,000 for teacher falsely arrested at school, strip searched, incarcerated 10 hours and characterized in news reports as child beater), appeal denied, 69 N.Y.2d 607, 507 N.E.2d 320, 514 N.Y.S.2d 1024 (1987); Orndorff v. De Nooyer Chevrolet, Inc., 117 A.D.2d 365, 503 N.Y.S.2d 444 (3d Dep’t 1986) (affirming $50,000. for false arrest where plaintiff held in custody for 12 hours and ridiculed in newspaper); Palmquist v. City of Albany, 112 A.D.2d 624, 492 N.Y.S.2d 487 (3d Dep’t 1985) (affirming $18,500 for detention of 3 hours and physical injuries); Woodard v. City of Albany, 81 A.D.2d 947, 439 N.Y.S.2d 701 (3d Dep’t 1981) (mem.) ($16,000 reduced to $7,500 for 5 hours in jail); Klein v. City of New York, No. 48884/81 (App.Term, 1st Dep’t Mar. 9, 19.82) ($30,000 for false arrest reduced to $15,000 for custody of 16 hours).. The guidance provided by these cases confirms our impression that the evidence cannot justify the magnitude of the award for deprivation of liberty. Accordingly, we order a new trial on the issue of these damages, unless Gardner agrees to remit the amount in excess of $50,000. Noting that Gardner’s treatment for his physical injuries was limited and that he did not seek any psychological treatment, Federated contends that the damages award of $150,000 for the pain and suffering experienced up until trial is excessive. The evidence adduced at trial established that Gardner suffered from ear aches, lockjaw and TMJ. Both psychiatric experts agreed that Gardner was suffering from an atypical anxiety disorder. Federated’s expert further noted that the incident induced a personality change; and Gardner’s expert noted that the incident caused Gardner to “enjoy things a lot less.” Sums of the magnitude of that awarded here for pain and suffering have been sustained, even absent a showing that the injuries were chronic or debilitating. See Ismail, 899 F.2d at 187 (citing New York cases). In light of the foregoing, we find that the award for past pain and suffering was not excessive. 3. Denial of the Continuance Federated contends that" }, { "docid": "23411225", "title": "", "text": "$7,000,000 to approximately $630,000); Le Bel v. Airlines Limousine Service, Inc., 92 A.D.2d 996, 461 N.Y.S.2d 474 (3d Dep’t 1983) (upholding award of $800,000 — which included compensation for substantial economic loss — for crushing of leg that would require amputation, had caused and would continue to cause pain, and had required five extensive hospitaliza tions); Terry v. State, 79 A.D.2d 1069, 1069, 435 N.Y.S.2d 389, 390 (3d Dep’t 1981) (increasing to $400,000 an award1 to 18-year-old boy whose left arm was rendered useless and who had suffered and was expected to suffer “excruciating pain” in the future); Prata v. National Railroad Passenger Corp., 70 A.D.2d 114, 420 N.Y. S.2d 276 (1st Dep’t) (reducing award for loss of hand from $1,250,000 to $700,000), appeals dismissed, 48 N.Y.2d 975, 425 N.Y.S.2d 1029, 401 N.E.2d 433 (1979); Dubicki v. Maresco, 64 A.D.2d 645, 407 N.Y. S.2d 66 (2d Dep’t 1978) (upholding award of $810,000 for deeply lacerated groin and injury resulting in complete disuse of right leg with threat of amputation); Kraft v. Carborundum Co., 57 A.D.2d 697, 395 N.Y.S.2d 542 (4th Dep’t 1977) (upholding award of $325,000 — which included compensation for 17.2 years of lost future income — for loss of left leg); Kusisto v. McLean, 52 A.D.2d 674, 675, 382 N.Y.S.2d 146, 147 (3d Dep’t 1976) (reducing from $510,000 to $400,000 an award that included future earnings for an 18-year-old boy whose left leg was amputated at mid-thigh who was “completely disabled from pursuing his chosen endeavor and, in fact, from performing any activity which requires mobility”). Sums of the magnitude of that awarded to Brent have been approved by New York courts only in cases that involved injuries much more severe than that suffered by Brent. For example, in Rush v. Sears, Roebuck & Co., 92 A.D.2d 1072, 461 N.Y. S.2d 559 (3d Dep’t 1983), the appellate court reduced a $4,000,000 award to a teenage girl who had suffered second and third degree burns over 42% of her body, resulting in “long and painful periods of hospitalization and treatment, skin grafting, de-bridement, permanently disfiguring scars and excruciating pain" } ]

[ { "docid": "22285077", "title": "", "text": "on any disputed factual questions. We believe that claimant’s contention is without merit. The parties expressly referred to Rule 56 in their respective motions for summary judgment. Neither referred to the order of May 24. Thus it appears that the parties in effect waived or abandoned the stipulation contained in the May 24 order and elected to invoke summary judgment procedure. The function of a motion for summary judgment is not to permit the court to decide issues of fact, but solely to determine whether there is an issue of fact to be tried. Aetna Ins. Co. v. Cooper Wells & Co., 234 F.2d 342 (6th Cir. 1956); Nyhus v. Travel Management Corp., 151 U.S.App.D.C. 269, 466 F.2d 440 (D.C.Cir. 1972); United States v. Bissett-Berman Corp., 481 F.2d 764 (9th Cir. 1973). “[Preponderance of the evidence is not the test in a summary judgment proceeding; rather the test is whether a genuine issue of material fact remains after examination of pleadings, depositions, answers to interrogatories, and admissions . on file, together with affidavits.” Ransburg Electro-Coating Corp. v. Lansdale Finishers, Inc., 484 F.2d 1037, 1039 (3d Cir. 1973). It follows that the district court’s consideration of the preponderance of the evidence in ruling on the cross-motions for summary judgment was erroneous. Instead, the district court should have required the party moving for summary judgment to bear the burden of clearly establishing the non-existence of any genuine issue of fact material to a judgment in his favor. Berry v. Michigan Bell Telephone Co., 319 F.Supp. 401 (E.D.Mich.1967). The evidence should have been construed in the light most favorable to the party opposing the motion. Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962). Claimant concedes that the critical issue centers around the proviso to the third condition for the exemption: (3) ... Provided, however, that such information may be omitted from the dispensing package if, but only if, the article is a device for which directions, hazards, warnings, and other information are commonly known to practitioners licensed by law to use the device. Upon written request," } ]

[ { "docid": "16763391", "title": "", "text": "905, 908 (6th Cir.1982), see Willetts v. Ford Motor Co., 583 F.2d 852, 854 (6th Cir.1978); Felix v. Young, 536 F.2d 1126, 1130 (6th Cir.1976). The function of a motion for summary judgment is not to allow the court to decide issues of fact but rather to determine whether there is an issue of fact to be tried. United States v. Articles of Device, Etc., 527 F.2d 1008, 1011 (6th Cir.1976); Aetna Ins. Co. v. Cooper Wells & Co., 234 F.2d 342, 345 (6th Cir.1956). The moving party bears the burden of clearly establishing the nonexistence of any genuine issue of fact material to a judgment in his favor. Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Articles, 527 F.2d at 1011. In determining whether there are genuine issues of fact warranting a trial, the evidence will be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir.1962). If a disputed question of material fact remains, the motion for summary judgment must be denied. Atlas, 668 F.2d at 908; Felix, 536 F.2d at 1030; Bohn, 303 F.2d at 427. The court must examine all facts established by the record before it and conclude that no genuine issue of material fact exists before granting summary judgment. B. Liability for Trust Fund Taxes Sections 3102 and 3402(a) of the Internal Revenue Code require employers to withhold social security and income taxes from employee wages. These taxes are held in trust by the employer for the government. I.R.C. § 7501; Slodov v. United States, 436 U.S. 238, 243, 98 S.Ct. 1778, 1783, 56 L.Ed.2d 251 (1978). The 100 percent penalty imposes personal liability on individuals for unpaid taxes withheld from employee earnings under I.R.C. § 6672(a). The section provides, in pertinent part: Any person required to collect, truthfully account for, and pay over any tax imposed by this title" }, { "docid": "10245900", "title": "", "text": "the moving party to demonstrate that there are not material facts genuinely in dispute. In order to avoid the improper granting of the remedy, the Court is required to resolve all ambiguities and to draw all reasonable inferences in favor of the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 153-61, 90 S.Ct. 1598, 1606-10, 26 L.Ed.2d 142 (1970). A Motion for Summary Judgment is governed by the standards set forth in Bankruptcy Rule 7056 and Federal Rule of Civil Procedure 56(C). The Rule states that the movant will be entitled to summary judgment when: The pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. As stated by the court In re Kaltz, 100 B.R. 871, 872 (Bankr.E.D.Mich.1989), in adjudicating a Motion for Summary Judgment. “[T]he moving party must show conclusively that no genuine issue exists as to any material fact.” See also Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.) cert. denied, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979); Willetts v. Ford Motor Co., 583 F.2d 852, 854 (6th Cir.1978). The function of a Motion for Summary Judgment is not to allow the court to decide issues of fact but rather to determine whether there is an issue of fact to be tried. United States v. Articles of Denial Device, etc., 527 F.2d 1008, 1011 (6th Cir. 1976); Aetna Insurance Co. v. Cooper Wells & Co., 234 F.2d 342, 345 (6th Cir.1956). If a disputed question of material fact is remaining, the Motion for Summary Judgment must be denied. In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir.1982); Felix v. Young, 536 F.2d 1126, 1136 (6th Cir.1976). In 1986, the Supreme Court ushered in a “new era” in summary judgment proceedings when it decided the three cases of Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex" }, { "docid": "18629198", "title": "", "text": "Motion for Summary Judgment In considering the Defendants’ Motion for Summary Judgment, this court is guided by the standards set forth by Judge Gibson in FMB-First Michigan Bank v. Van Rhee, 681 F.Supp. 1264, 1266 (W.D. Mich.1987), wherein it is stated: Summary judgment is appropriate only where no genuine issue of material fact remains to be decided and the moving party is entitled to judgment as a matter of law. Atlas Concrete Pipe, Inc. v. Roger J. Au & Son, Inc., 668 F.2d 905, 908 (6th Cir.1982), see Willetts v. Ford Motor Co., 583 F.2d 852, 854 (6th Cir. 1978); Felix v. Young, 536 F.2d 1126, 1130 (6th Cir.1976). The function of a motion for summary judgment is not to allow the court to decide issues of fact but rather to determine whether there is an issue of fact to be tried. United States v. Articles of Device, Etc., 527 F.2d 1008, 1011 (6th Cir.1976); Aetna Ins. Co. v. Cooper Wells & Co., 234 F.2d 342, 345 (6th Cir.1956). The moving party bears the burden of clearly establishing the nonexistence of any genuine issue of fact material to a judgment in his favor. Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Articles, 527 F.2d at 1011. In determining whether there are genuine issues of fact warranting a trial, the evidence will be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir.1962). If a disputed question of material fact remains, the motion for summary judgment must be denied. Atlas, 668 F.2d at 908; Felix, 536 F.2d at 1030; Bohn, 303 F.2d at 427. The court must examine all stipulated facts and conclude that no genuine issue of material fact exists before granting summary judgment. The Defendants also argue that they should prevail because the Trustee has failed to state a cause of action. B.R. 7012; FRCP" }, { "docid": "1101357", "title": "", "text": "May 15, 1990, the Trustee abandoned the remaining assets located upon the Premises per order of this court. (Exhibit 3 of Brief in Support of Old Kent Bank-Southwest’s and the Trustee’s Motion for Summary Judgment.) IY. DISCUSSION A. Standards to Grant or Deny Motions for Summary Judgment In considering the cross motions for summary judgment, this court is guided by the standards set forth by Judge Gibson in FMB-First Michigan Bank v. Van Rhee, 681 F.Supp. 1264, 1266 (W.D.Mich.1987), wherein it is stated: Summary judgment is appropriate only where no genuine issue of material fact remains to be decided and the moving party is entitled to judgment as a matter of law. Atlas Concrete Pipe, Inc. v. Roger J. Au & Son, Inc., 668 F.2d 905, 908 (6th Cir.1982), see Willetts v. Ford Motor Co., 583 F.2d 852, 854 (6th Cir.1978); Felix v. Young, 536 F.2d 1126, 1130 (6th Cir.1976). The function of a motion for summary judgment is not to allow the court to decide issues of fact but rather to determine whether there is an issue of fact to be tried. United States v. Articles of Device, Etc., 527 F.2d 1008, 1011 (6th Cir.1976); Aetna Ins. Co. v. Cooper Wells & Co., 234 F.2d 342, 345 (6th Cir.1956). The moving party bears the burden of clearly establishing the non-existence of any genuine issue of fact material to a judgment in his favor. Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Articles, 527 F.2d at 1011. In determining whether there are genuine issues of fact warranting a trial, the evidence will be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir.1962). If a disputed question of material fact remains, the motion for summary judgment must be denied. Atlas, 668 F.2d at 908; Felix, 536 F.2d at 1030; Bohn, 303 F.2d at 427. In Anderson" }, { "docid": "15577439", "title": "", "text": "Jenkins answered the Complaint on February 13, 1981. The Answer contained a Counter Claim against the United States alleging that certain employees of the United States, notably the former and present United States Attorneys for this District, made unauthorized disclosures of financial information relating to Davidson. Presently, this matter is before the Court on Plaintiff’s Motion for Partial Summary Judgment, filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. I. Summary Judgment To warrant the grant of summary judgment, the moving party bears the burden of establishing the non-existence of any genuine issue of fact that is material to a judgment in his favor. Adickes v. S.H. Kress & Company, 398 U.S. 144, 147, 90 S.Ct. 1598, 1602, 26 L.Ed.2d 142 (1970); United States v. Articles of Device ... Diapulse, 527 F.2d 1008, 1011 (CA 6 1976); Nunez v. Superior Oil Company, 572 F.2d 1119 (CA 5 1978); Tee-Pak, Inc. v. St. Regis Paper Company, 491 F.2d 1193 (CA 6 1974). If no genuine issue as to any material fact is established, the moving party is entitled to judgment as a matter of law. Chavez v. Noble Drilling Company, 567 F.2d 287 (CA 5 1978); Irwin v. United States, 558 F.2d 249 (CA 5 1977). In determining whether or not there are issues of fact requiring a trial, “the inferences to be drawn from the underlying facts contained in the (affidavits, attached exhibits, and depositions) must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corporation v. Storm King Corporation, 303 F.2d 425 (CA 6 1962). Even if the basic facts are not disputed, summary judgment may be inappropriate when contradictory inferences may be drawn from them. United States v. Diebold, supra; EEOC v. United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry, Local 189, 427 F.2d 1091, 1093 (CA 6 1970). In making this determination, the Court must make reference to the entire record and all well pleaded" }, { "docid": "5992724", "title": "", "text": "funds. The defendants also challenge the authority of the Court to assert control over the funds pending final disposition of this matter. Defendant Wayland has also moved for summary judgment. It is Wayland’s position that the claims against it are barred under the Michigan Commercial Code. In a letter dated May 1, 1987, defendants Hudsonville and VanN-oord requested oral argument on this matter. However, after careful review, the Court finds that oral argument is unnecessary for resolution of this matter. Accordingly, defendants’ request is denied. II. STANDARD OF REVIEW Summary judgment is appropriate only where no genuine issue of material fact remains to be decided and the moving party is entitled to judgment as a matter of law. Atlas Concrete Pipe, Inc. v. Roger J. Au & Son, Inc., 668 F.2d 905, 908 (6th Cir.1982), see Willetts v. Ford Motor Co., 588 F.2d 852, 854 (6th Cir.1978); Felix v. Young, 536 F.2d 1126, 1130 (6th Cir.1976). The function of a motion for summary judgment is not to allow the court to decide issues of fact but rather to determine whether there is an issue of fact to be tried. United States v. Articles of Device, Etc., 527 F.2d 1008, 1011 (6th Cir.1976); Aetna Ins. Co. v. Cooper Wells & Co., 234 F.2d 342, 345 (6th Cir.1956). The moving party bears the burden of clearly establishing the non-existence of any genuine issue of fact material to a judgment in his favor. Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Articles, 527 F.2d at 1011. In determining whether there are genuine issues of fact warranting a trial, the evidence will be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir.1962). If a disputed question of material fact remains, the motion for summary judgment must be denied. Atlas, 668 F.2d at 908; Felix, 536 F.2d at 1030; Bohn," }, { "docid": "16763390", "title": "", "text": "sign and issue checks on behalf of Medina Construction to pay other creditors, including suppliers and employee wages. The Debtors continued to pay net payroll each week and neglected paying withholding taxes. The main reason the Debtors paid other creditors rather than the government was to continue the corporation’s business operations. On August 11,1986, the I.R.S. assessed a 100 percent penalty against the Debtors in the amount of $37,108.50. In addition, the Debtors were assessed tax liabilities for failure to pay over federal income taxes. IV. DISCUSSION A. Standards to Grant or Deny Motion for Summary Judgment In considering the cross motions for summary judgment, this court is guided by the standards set forth by Judge Gibson in FMB-First Michigan Bank v. Van Rhee, 681 F.Supp. 1264, 1266 (W.D.Mich.1987), wherein it is stated: Summary judgment is appropriate only where no genuine issue of material fact remains to be decided and the moving party is entitled to judgment as a matter of law. Atlas Concrete Pipe, Inc. v. Roger J. Au & Son, Inc., 668 F.2d 905, 908 (6th Cir.1982), see Willetts v. Ford Motor Co., 583 F.2d 852, 854 (6th Cir.1978); Felix v. Young, 536 F.2d 1126, 1130 (6th Cir.1976). The function of a motion for summary judgment is not to allow the court to decide issues of fact but rather to determine whether there is an issue of fact to be tried. United States v. Articles of Device, Etc., 527 F.2d 1008, 1011 (6th Cir.1976); Aetna Ins. Co. v. Cooper Wells & Co., 234 F.2d 342, 345 (6th Cir.1956). The moving party bears the burden of clearly establishing the nonexistence of any genuine issue of fact material to a judgment in his favor. Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Articles, 527 F.2d at 1011. In determining whether there are genuine issues of fact warranting a trial, the evidence will be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d" }, { "docid": "10245901", "title": "", "text": "to any material fact.” See also Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.) cert. denied, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979); Willetts v. Ford Motor Co., 583 F.2d 852, 854 (6th Cir.1978). The function of a Motion for Summary Judgment is not to allow the court to decide issues of fact but rather to determine whether there is an issue of fact to be tried. United States v. Articles of Denial Device, etc., 527 F.2d 1008, 1011 (6th Cir. 1976); Aetna Insurance Co. v. Cooper Wells & Co., 234 F.2d 342, 345 (6th Cir.1956). If a disputed question of material fact is remaining, the Motion for Summary Judgment must be denied. In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir.1982); Felix v. Young, 536 F.2d 1126, 1136 (6th Cir.1976). In 1986, the Supreme Court ushered in a “new era” in summary judgment proceedings when it decided the three cases of 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). The Sixth Circuit recognized the drastic change these cases bring to the analysis of summary judgment proceedings as a “salutary return to the original purpose of summary judgments.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir.1989). In the Sixth Circuit, the law is well settled, a material fact is “genuine” if a reasonable fact finder, in assessing the evidence, could possibly return a verdict for the non-moving party. See Bohm v. Forum Resorts, Inc., 762 F.Supp. 705, 707 (E.D.Mich.1991). Prior to granting Summary Judgment, this Court must scrutinize all the facts and conclude that in accordance with the applicable substantive law, that no reasonable fact finder could grant Summary Judgment for the non-moving party. The absence of a genuine issue of material fact dictates the granting of Summary Judgment. Substantive consolidation is the merger of two or more" }, { "docid": "3010122", "title": "", "text": "conclusion, this Court finds that the exercise of jurisdiction over the parent is “eminently reasonable” considering the facts and circumstances of this case. JWC’s motion for dismissal based on lack of personal jurisdiction is denied. SUMMARY JUDGMENT ON PLAINTIFF’S AGE DISCRIMINATION CLAIMS Defendants’ motion is made pursuant to Rule 56 of the Federal Rules of Civil Procedure, which reads in pertinent part as follows: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. To warrant the grant of summary judgment, the moving party bears the burden of establishing the non-existence of any genuine issue of fact that is material to a judgment in his favor. Adickes v. S.H. Kress & Co., 398 U.S. 144, 147, 90 S.Ct. 1598, 1603, 26 L.Ed.2d 142 (1970); United States v. Articles of Device ... Diapulse, 527 F.2d 1008, 1011 (6th Cir.1976). In determining whether or not there are issues of fact requiring a trial, “the inferences to be drawn from the underlying facts contained in the affidavits, attached exhibits, and depositions must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir.1962). In a recent trilogy, the Supreme Court has clarified and reinforced the appropriate scope and use of summary judgment motions. Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See generally S. Childress, “A New Era for Summary Judgments: Recent Shifts at the Supreme Court,” 116 F.R.D. 183 (1987). In Celotex, the Supreme Court emphasized the fact that: [T]he plain" }, { "docid": "18629199", "title": "", "text": "of clearly establishing the nonexistence of any genuine issue of fact material to a judgment in his favor. Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Articles, 527 F.2d at 1011. In determining whether there are genuine issues of fact warranting a trial, the evidence will be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir.1962). If a disputed question of material fact remains, the motion for summary judgment must be denied. Atlas, 668 F.2d at 908; Felix, 536 F.2d at 1030; Bohn, 303 F.2d at 427. The court must examine all stipulated facts and conclude that no genuine issue of material fact exists before granting summary judgment. The Defendants also argue that they should prevail because the Trustee has failed to state a cause of action. B.R. 7012; FRCP 12(b)(6). Therefore, the court must also consider a different standard from that which governs a summary judgment motion. A Rule 12(b)(6) dismissal should be granted only when the court, upon review of the complaint, is convinced that the complainant 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, 101-02, 2 L.Ed.2d 80 (1957). See also Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Martin v. Kelley, 803 F.2d 236, 239 n. 4 (6th Cir.1986). The court will address certain legal issues raised to determine if the causes of action asserted by the Trustee are sufficient as a matter of law. Applicability of State Law Regarding Exemptions The Trustee seeks to avoid certain pre-petition transfers of real property and money from the Debtor to the Defendants pursuant to 11 U.S.C. §§ 547(b) and 548(a). The Debtor, in his schedules, elected to exempt property under state law. 11 U.S.C. § 522(b)(2). The" }, { "docid": "5992725", "title": "", "text": "but rather to determine whether there is an issue of fact to be tried. United States v. Articles of Device, Etc., 527 F.2d 1008, 1011 (6th Cir.1976); Aetna Ins. Co. v. Cooper Wells & Co., 234 F.2d 342, 345 (6th Cir.1956). The moving party bears the burden of clearly establishing the non-existence of any genuine issue of fact material to a judgment in his favor. Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Articles, 527 F.2d at 1011. In determining whether there are genuine issues of fact warranting a trial, the evidence will be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir.1962). If a disputed question of material fact remains, the motion for summary judgment must be denied. Atlas, 668 F.2d at 908; Felix, 536 F.2d at 1030; Bohn, 303 F.2d at 427. III. HUDSONVILLE AND VANN-OORD’S MOTION FOR SUMMARY JUDGMENT The motion filed by defendants Hudson-ville and VanNoord presents three issues for resolution. The first issue concerns whether FMB has a perfected security interest in the funds received by the Van Rhees pursuant to the DTP. The second issue presented is whether any security interest enuring to FMB was extinguished by the federal regulations governing the DTP. Assuming defendants are entitled to summary judgment, the third issue presented is whether sanctions should be imposed on the remaining parties for pursuing this cause of action. These issues will be discussed seriatim. Defendants, Kenneth Van Rhee and Gary Van Rhee, are dairy farmers. Plaintiff FMB made loans to Gary Van Rhee and received a security interest in certain assets of Gary and Karen Van Rhee including, but not limited to, livestock, products from livestock, and proceeds thereof. FMB also received an assignment of milk proceeds. Security agreements identifying FMB’s interest were executed on or about February 16, 1981; April 26, 1982 and September 16, 1983." }, { "docid": "18379915", "title": "", "text": "County of Van Burén, the Sheriff’s Department of Van Burén County, and Sheriff Rosema in his individual and official capacities. Presently before the Court is Defendants’ Motion for Summary Judgment, filed October 15, 1984. I. Standard of Review To warrant the grant of summary judgment, the moving party bears the burden of establishing the non-existence of any genuine issue of fact that is material to a judgment in his favor. Adickes v. S.H. Kress & Company, 398 U.S. 144, 147, 90 S.Ct. 1598, 1603, 26 L.Ed. 142 (1970); United States v. Articles of Device ... Diapulse, 527 F.2d 1008, 1011 (CA6 1976); Nunez v. Superior Oil Company, 572 F.2d 1119 (CA6 1978); Tee-Pak, Inc. v. St. Regis Paper Company, 491 F.2d 1193 (CA6 1974). If no genuine issue as to any material fact is established, the moving party is entitled to judgment as a matter of law. Chavez v. Noble Drilling Company, 567 F.2d 287 (CA5 1978); Irwin v. U.S., 558 F.2d 249 (CA6 1977). In determining whether or not there are issues of fact requiring a trial, “the inferences to be drawn from the un derlying facts contained in the (affidavits, attached exhibits, and depositions) must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 869 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corporation v. Storm King Corporation, 303 F.2d 425 (CA6 1962). Even if the basic facts are not disputed, summary judgment may be inappropriate when contradictory inferences may be drawn from them. United States v. Diebold, supra; EEOC v. United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry, Local 189, 427 F.2d 1091, 1093 (CA6 1970). In making this determination, the Court must make reference to the entire record and all well pleaded allegations are to be accepted as true. Dayco Corporation v. Goodyear Tire and Rubber Company, 523 F.2d 389 (CA6 1975); Holmes v. Insurance Company of North America, 288 F.Supp. 325 (DC Mich 1968); Mahlar v. U.S., 196 F.Supp. 362 (DC Pa 1961). These guidelines" }, { "docid": "1101356", "title": "", "text": "Both the Debtor and Arnox were in the business of treating lumber and used the Premises for this purpose. (Counterclaim at 6; Trustee’s Answer at 3; Bank’s Answer at 3.) Dock’s Corner asserts that the Debtor and/or Arnox caused environmental damage to the Premises through their process of treating wood. On April 23, 1990, the court confirmed a sale of virtually all of the Debtor’s assets, including certain treated wood inventory, located on the Premises. The Bank holds valid and perfected security interests in all equipment, inventory, and personal property of the Debtor which was stored at the Premises, including the treated wood inventory sold on April 23, 1990. (Third Party Complaint at 6; Trustee’s Answer at 3; Bank’s Answer at 6; Affidavit of Michael Stolz dated April 4, 1991.) The court ordered the Trustee to hold the proceeds from the sale of the wood inventory until the validity of the alleged landlord’s lien was determined. (Exhibit 2 of Brief in Support of Old Kent Bank-Southwest’s and the Trustee’s Motion for Summary Judgment.) Subsequently, on May 15, 1990, the Trustee abandoned the remaining assets located upon the Premises per order of this court. (Exhibit 3 of Brief in Support of Old Kent Bank-Southwest’s and the Trustee’s Motion for Summary Judgment.) IY. DISCUSSION A. Standards to Grant or Deny Motions for Summary Judgment In considering the cross motions for summary judgment, this court is guided by the standards set forth by Judge Gibson in FMB-First Michigan Bank v. Van Rhee, 681 F.Supp. 1264, 1266 (W.D.Mich.1987), wherein it is stated: Summary judgment is appropriate only where no genuine issue of material fact remains to be decided and the moving party is entitled to judgment as a matter of law. Atlas Concrete Pipe, Inc. v. Roger J. Au & Son, Inc., 668 F.2d 905, 908 (6th Cir.1982), see Willetts v. Ford Motor Co., 583 F.2d 852, 854 (6th Cir.1978); Felix v. Young, 536 F.2d 1126, 1130 (6th Cir.1976). The function of a motion for summary judgment is not to allow the court to decide issues of fact but rather to determine whether there" }, { "docid": "22876269", "title": "", "text": "guards after the initial sale in 1970.” Rule 56(c) provides that a motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(e) provides, in pertinent part: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. A summary judgment movant bears the burden of clearly and convincingly establishing the nonexistence of any genuine issue of material fact, and the evidence as well as all inferences drawn therefrom must be read in a light most favorable to the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 158-59, 90 S.Ct. 1598, 1608, 1608-09, 26 L.Ed.2d 142 (1970); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.), cert. denied, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979); United States v. Articles of Device, etc., 527 F.2d 1008, 1011 (6th Cir.1976). “Further, the papers supporting the movant are closely scrutinized, whereas the opponent’s are indulgently treated.” Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir.1962); Smith, 600 F.2d at 63; Articles of Device, 527 F.2d at 1011. In First National Bank v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968), the Supreme Court stated: It is true that the issue of material fact required by Rule 56(e) to be present to entitle a party to proceed to trial is not required to" }, { "docid": "18275988", "title": "", "text": "this motion as one for summary judgment pursuant to Fed.R.Civ.P. 56 which provides in relevant part: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. To warrant the grant of summary judgment, the moving party bears the burden of establishing the non-existence of any genuine issue of fact that is material to a judgment in his favor. Adickes v. S.H. Kress & Co., 398 U.S. 144, 147, 90 S.Ct. 1598, 1602, 26 L.Ed.2d 142 (1970); United States v. Articles of Device ... Diapulse, 527 F.2d 1008, 1011 (6th Cir.1976). The opposing party need present its own factual material only if the movant has first met this burden. “Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.” Advisory Committee Note, 1963 Amendment to Rule 56(e). In determining whether or not there are issues of fact requiring a trial, “the inferences to be drawn from the underlying facts contained in the [affidavits, attached exhibits, and depositions] must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir.1962). Even if the basic facts are not disputed summary judgment may be inappropriate when contradictory inferences may be drawn from them. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); E.E.O.C. v. United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry, Local 189, 427 F.2d 1091, 1093 (6th Cir.1970). Although summary judgment may properly be entered in any type of civil action, the Court must be “extremely hesitant to grant summary judgment on important and complex issues”" }, { "docid": "710309", "title": "", "text": "Plaintiffs’ pendent state law claims are dismissed for failure to state a claim on which relief can be granted. Fed.R.Civ.P. 12(b)(6). ERISA preempts state law provisions concerning employee benefit plans, federalizing the area of pension rights and related ancillary welfare benefits by establishing uniform standards of fiscal responsibility for the administration of such plans. H.R.Rep. No. 93-533, 93d Cong. 2d Sess., in 1974 U.S.Code Cong. & Admin. News 4639 at 4639-40 [House Report]; Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523, 101 S.Ct. 1895, 1906, 68 L.Ed.2d 402 (1981); Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1215 (8th Cir.1981), cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384 (1981); Scott v. Gulf Oil Corp. 754 F.2d 1499 (9th Cir. 1985). III. Applicable Law A. Standard of Review on Summary Judgment. A party moving for summary judgment bears the burden of demonstrating the nonexistence of any genuine issue of fact material to a judgment in his favor. Adickes v. S.H. Kress & Company, 398 U.S. 144, 147, 90 S.Ct. 1598, 1603, 26 L.Ed.2d 142 (1970); United States v. Article of Device ... “Diapulse”, 527 F.2d 1008, 1011 (6th Cir.1976). A party who demonstrates the absence of any material fact and that the applicable law warrants a judgment in his favor is entitled to an order of summary judgment as a matter of law. In reviewing the materials submitted to the Court on the motion for summary judgment, the Court will evaluate the inferences that may be drawn from the underlying facts contained in the pleadings, affidavits, exhibits, and depositions, and will view those inferences in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corporation v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962). The Court adheres to these procedural standards in its review of the facts and the application of the appropriate law. B. The Employment Retirement Income Security Act—ERISA 1. Pension Plans and Welfare Benefit Plans Defined In defining the nature of the" }, { "docid": "18629197", "title": "", "text": "$100. Prior to the bankruptcy filing, the Debt- or received a lump sum redemption with respect to a worker’s compensation claim in the amount of $23,000. The Debtor used $3,000 of these proceeds for living expenses. The remainder of the proceeds, i.e., $20,000, were paid to the Defendant Parents on July 9, 1987. The Debtor filed his voluntary petition under Chapter 7 of the Bankruptcy Code on August 28, 1987. The Debtor’s statement of affairs and schedules listed unsecured debts, excluding any obligations to the Defendants, in the amount of $94,-269.93. All unsecured debts listed were solely the Debtor’s obligations except for one joint debt in the amount of $300. The Defendants assert the non-debtor wife intends to pay that joint debt outside of the bankruptcy case. The parties have agreed that the stipulated facts are solely applicable for purposes of the Defendants’ motion for summary judgment. If summary judgment is denied, the parties have reserved the right to present other evidence at the trial of this adversary proceeding. DISCUSSION Standards to Grant or Deny Motion for Summary Judgment In considering the Defendants’ Motion for Summary Judgment, this court is guided by the standards set forth by Judge Gibson in FMB-First Michigan Bank v. Van Rhee, 681 F.Supp. 1264, 1266 (W.D. Mich.1987), wherein it is stated: Summary judgment is appropriate only where no genuine issue of material fact remains to be decided and the moving party is entitled to judgment as a matter of law. Atlas Concrete Pipe, Inc. v. Roger J. Au & Son, Inc., 668 F.2d 905, 908 (6th Cir.1982), see Willetts v. Ford Motor Co., 583 F.2d 852, 854 (6th Cir. 1978); Felix v. Young, 536 F.2d 1126, 1130 (6th Cir.1976). The function of a motion for summary judgment is not to allow the court to decide issues of fact but rather to determine whether there is an issue of fact to be tried. United States v. Articles of Device, Etc., 527 F.2d 1008, 1011 (6th Cir.1976); Aetna Ins. Co. v. Cooper Wells & Co., 234 F.2d 342, 345 (6th Cir.1956). The moving party bears the burden" }, { "docid": "1101358", "title": "", "text": "is an issue of fact to be tried. United States v. Articles of Device, Etc., 527 F.2d 1008, 1011 (6th Cir.1976); Aetna Ins. Co. v. Cooper Wells & Co., 234 F.2d 342, 345 (6th Cir.1956). The moving party bears the burden of clearly establishing the non-existence of any genuine issue of fact material to a judgment in his favor. Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Articles, 527 F.2d at 1011. In determining whether there are genuine issues of fact warranting a trial, the evidence will be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir.1962). If a disputed question of material fact remains, the motion for summary judgment must be denied. Atlas, 668 F.2d at 908; Felix, 536 F.2d at 1030; Bohn, 303 F.2d at 427. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Supreme Court analyzed the requirements necessary to grant a motion for summary judgment, specifically focusing on what constitutes a “genuine issue of material fact.” Id. at 248, 106 S.Ct. at 2510 (emphasis in original). In determining whether a fact is “material,” the Court stated: As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. Id. (emphasis added). A material fact is “genuine” if a reasonable fact-finder, in assessing the evidence, could possibly return a verdict for the nonmoving party. Id.; Bohm v. Forum Resorts, Inc., 762 F.Supp. 705, 707 (E.D.Mich.1991); Hoffman v. Roberto, 85 B.R. 406, 409 (W.D.Mich.1987). The Court further noted: [I]t is clear enough from our recent cases that at the summary judgment stage the judge’s function is not himself to" }, { "docid": "13902466", "title": "", "text": "rational trier of fact to find for the non-moving party, there is no “genuine issue for trial.” Matsushita Elec., 475 U.S. at 586-87, 106 S.Ct. at 1355-56 (citations and footnotes omitted). Any inferences to be drawn from the underlying facts contained in these materials must be considered in the light most favorable to the Debtor. United States v. Diebold, Inc. 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Watkins v. Northwestern Ohio Tractor Pullers Assoc., Inc., 630 F.2d 1155, 1158 (6th Cir.1980). [A] district court cannot grant summary judgment in favor of a movant simply because the adverse party has not responded. The court is required, at a minimum, to examine the movant’s motion for summary judgment to ensure that he has discharged that [initial] burden. Carver v. Bunch, 946 F.2d 451 (6th Cir.1991). See also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Kendall v. Hoover, 751 F.2d 171, 173-74 (6th Cir.1984); Felix v. Young, 536 F.2d 1126, 1135 (6th Cir.1976). If the moving party fails to make the necessary showing under Rule 56, summary judgment is inappropriate even though no opposing material is presented. Klausing v. Whirlpool Corp., 623 F.Supp. 156, 160 (S.D.Ohio 1985), appeal dismissed, 785 F.2d 309 (6th Cir.1986); see also Allard v. Vinci (In re DeLorean Motor Co.), 91 B.R. 766, 769 (Bankr.E.D.Mich.1988). Hence, the Court must examine the motion in the light most favorable to the Debtor even though he has filed no opposition. See Adickes, 398 U.S. at 157, 90 S.Ct. at 1608. B. Piercing the Corporate Veil Huntington acknowledges that in order to deny the Debtor a discharge as to this debt, it first must establish that the Debtor is personally liable for such debt. To do so, Huntington must show that factors exist to justify piercing of the corporate veil. No precise test for disregarding the corporate fiction has been articulated by the courts, each case being regarded as “sui generis” and decidable on its own facts. Nonetheless, certain general principles have been recognized. As recently set" }, { "docid": "22876270", "title": "", "text": "a light most favorable to the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 158-59, 90 S.Ct. 1598, 1608, 1608-09, 26 L.Ed.2d 142 (1970); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.), cert. denied, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979); United States v. Articles of Device, etc., 527 F.2d 1008, 1011 (6th Cir.1976). “Further, the papers supporting the movant are closely scrutinized, whereas the opponent’s are indulgently treated.” Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir.1962); Smith, 600 F.2d at 63; Articles of Device, 527 F.2d at 1011. In First National Bank v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968), the Supreme Court stated: It is true that the issue of material fact required by Rule 56(e) to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial. Rule 56(e) does not require a party “to respond to a motion for summary judgment in order to prevail since the burden of establishing the nonexistence of a material factual dispute always rests with the movant.” Smith, 600 F.2d at 64; Felix v. Young, 586 F.2d 1126, 1134-35 (6th Cir.1976); Adickes, 398 U.S. at 159-60, 90 S.Ct. at 1609-10. However, [t]he thrust of Rule 56(e) is that a party may not simply rest on the allegations in his pleadings in opposing a motion for summary judgment. Adickes v. Kress & Co., supra, 398 U.S. at 159 n. 19 [90 S.Ct. at 1609 n. 19].... Plaintiffs are not entitled “to get to the jury on the basis of the allegations in their complaints, coupled with the hope that something can be developed" } ]

[ { "docid": "22630011", "title": "", "text": "F.3d at 1288 (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.1983)). This duty extends to the represented as well as to the unrepresented claimant. Id. When the claimant is unrepresented, however, the ALJ must be especially diligent in exploring for all the relevant facts. Cox v. Califano, 587 F.2d 988, 991 (9th Cir.1978). In this case, Tonapetyan was represented, but by a lay person rather than an attorney. The ALJ’s duty to develop the record fully is also heightened where the claimant may be mentally ill and thus unable to protect her own interests. Higbee v. Sullivan, 975 F.2d 558, 562 (9th Cir.1992). Ambiguous evidence, or the ALJ’s own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ’s duty to “conduct an appropriate inquiry.” Smolen, 80 F.3d at 1288; Armstrong v. Commissioner of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir.1998). The ALJ may discharge this duty in several ways, including: subpoenaing the claimant’s physicians, submitting questions to the claimant’s physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record. Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir.1998); Smolen, 80 F.3d at 1288. Although the ALJ here did not specifically find that the evidence of Tonape-tyan’s mental impairment was ambiguous, or that he lacked sufficient evidence to render a decision, he relied heavily upon the testimony of the medical expert, Dr. Walter, who found just that. Dr. Walter began his testimony by describing Dr. Tra-bulus’s lack of anecdotal records as “confusing,” and by recommending that a more detailed report be obtained. He found it “difficult to say” whether the medical record was complete enough to allow the ALJ to reach a conclusion in the case. When asked for his diagnosis, he noted that To-napetyan was unquestionably “somewhat depressed.” He resisted concluding that she did or did not suffer from schizophrenia, however, suggesting that he would “have to see more evidence of that and a more detailed explanation” from Dr. Tra-bulus. Only when pressed by the ALJ for a diagnosis “based" } ]

[ { "docid": "16729657", "title": "", "text": "on Ferguson’s own self-reporting, that Ferguson was disabled — i.e., an opinion that relates to an issue “reserved to the Commissioner;” an opinion that is “never entitled to controlling weight or special significance.” Soc. Sec. Rul. 96-5p, 1996 WL 374183 at *2. See also Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir.2004) (determination of disability is prerogative of Commissioner, not treating physician, and treating physician’s opinion is entitled to substantial deference only if supported by objective medical evidence). Because Dr. Erulkar’s opinion on this issue reserved to the Commissioner was not supported by the objective medical evidence, the first precondition triggering the ALJ’s recontact obligation was arguably met. As to the second precondition, however, the bases for Dr. Erulkar’s opinion cannot be said to be unclear. Ferguson’s reported history and subjective complaints were the bases for Dr. Erulkar’s opinion. These bases were not unclear. They were in fact sufficient, in light of the other record evidence, to persuade the ALJ that Ferguson suffered from severe mental impairments. But they were insufficient to persuade the ALJ that Ferguson was disabled. This determination, whether Ferguson had carried her burden of showing that she is “disabled,” is the case dispositive issue reserved to the ALJ. In this respect, Dr. Erulkar’s opinion was deemed unpersuasive not because its bases were unclear, but because they were not corroborated by objective medical evidence. It follows that the ALJ’s SSR 96-5p duty to make every reasonable effort to recontact Dr. Erulkar was not triggered and therefore not violated. See Poe v. Comm’r of Soc. Sec., 342 Fed.Appx. 149, 156 n. 3 (6th Cir.2009) (“[A]n ALJ is required to re-contact a treating physician only when the information received is inadequate to reach a determination on claimant’s disability status, not where, as here, the ALJ rejects the limitations recommended by that physician.”); DeBoard v. Comm’r of Soc. Sec., 211 Fed.Appx. 411, 416 (6th Cir.2006) (same). In sum, we find no error. “The burden lies with the claimant to prove that she is disabled.” Foster v. Halter, 279 F.3d 348, 353 (6th Cir.2001). The ALJ has" }, { "docid": "9134146", "title": "", "text": "(\"Great weight is accord[ed] to the opinions of Dr. Spurling, as he has a long treatment relationship with the claimant and his conclusions ... are sustained by objective findings, are consistent with his treatment notes and within his area of specialization.\") ). However, the ALJ found that Dr. Spurling's opinions that Plaintiff was capable of only part-time work and would be absent more than four days per month were of limited evidentiary value because they lacked objective support and were supported only by Plaintiff's subjective complaints. (Id. ). The Court has reviewed Dr. Spurling's opinions and his treatment notes and finds that the ALJ's assessment of the opinions was proper. The ALJ considered the factors required by the treating physician rule, including Dr. Spurling's area of specialization, his treatment relationship with Plaintiff, and the consistency of his opinions with other information in the record. The ALJ properly rejected Dr. Spurling's opinions relating to Plaintiff's ability to perform full-time work and absences as unsupported by the record. Neither of the opinions offered by Dr. Spurling include any explanation as to why he believed that Plaintiff could work less than fulltime or would be absent more than four days per month. See Johnson v. Comm'r of Soc. Sec. , 669 F. App'x 580, 581 (2d Cir. 2016) (ALJ's decision to give less than controlling weight to medical opinion evidence was proper, where the opinions were not supported by the medical evidence, were at times internally inconsistent, and relied primarily on the plaintiff's self-reported symptoms). Rather, these opinions are offered on a check-box form. See Goodale v. Astrue , 32 F.Supp.3d 345, 358 (N.D.N.Y. 2012) (ALJ did not err by giving little weight to treating physician's opinion that used a \"check box\" form that counsel had provided). The lack of explanation is problematic, as Dr. Spurling's opinions regarding Plaintiff's ability to work fulltime and absences are belied by Dr. Spurling's own assessment that Plaintiff had only mild or moderate limitations for mental functioning. Further, there no is no objective evidence in Dr. Spurling's treatment notes supporting the conclusion that Plaintiff would not be" }, { "docid": "7725162", "title": "", "text": "Chaudhry contends that Dr. Schultz’s opinion carries more weight than Dr. Kraft’s because Dr. Schultz saw Chaudhry in person and Dr. Kraft did not. Because the RFC determination must take into account the claimant’s testimony regarding his capability, the ALJ must assess that testimony in conjunction with the medical evidence. “In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ must engage in a two-step analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.... ” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.2009), as amended (citations and internal quotation marks omitted). Second, “[i]f the claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms if [the ALJ] gives specific, clear and convincing reasons for the rejection.” Id. (citation and internal quotation marks omitted). “Where, as here, the record contains conflicting medical evidence, the ALJ is charged with determining credibility and resolving the conflict....” Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003) (citation omitted). “If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.... ” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citation omitted). “The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.2009) (citation and alteration omitted). When weighing the medical evidence as part of assessing the claimant’s testimony regarding the severity of his impairments, the ALJ gave Dr. Ho’s opinion less weight than Dr. Staley’s opinion because the ALJ concluded that Dr. Ho’s opinion “was based primarily on [Chaudhry’s] self-report of limitations.” As the ALJ noted, Dr. Ho’s opinion was predicated in part on her erroneous belief that Chaudhry’s wheelchair and cane" }, { "docid": "22538264", "title": "", "text": "from completing high school, obtaining a college degree, finishing a Certified Nurses’ Aide training program, and participating in military training. Bayliss also contends that the ALJ improperly rejected Dr. Manfield’s psychological assessment and Dr. Freeman’s opinion that Bayliss suffers from bipolar disorder. Dr. Manfield concluded that Bayliss suffered from several mental conditions, but he based this assessment on Bayliss’s complaints and information submitted by her family, her friends, and a former counselor. He did not review objective medical data or reports from treating physicians or counselors. Similarly, Dr. Freeman’s opinion was not supported by clinical evidence and was based on Bay-liss’s subjective complaints. Substantial evidence supports the ALJ’s decision not to rely on the opinion of either doctor. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002) (“The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.”). Bayliss further asserts that the ALJ should have recontacted Drs. Tobin, Sweet, and Manfield before rejecting parts of their opinions. “The claimant bears the burden of proving that she is disabled.” Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir.1999). An ALJ is required to recontact a doctor only if the doctor’s report is ambiguous or insufficient for the ALJ to make a disability determination. 20 C.F.R. §§ 404.1512(e), 416.912(e); Thomas, 278 F.3d at 958. The ALJ, with support in the record, found the evidence adequate to make a determination regarding Bayliss’s disability. Accordingly, the ALJ did not have a duty to recontact the doctors. III Bayliss next contends that the ALJ’s determination of her Residual Functional Capacity (“RFC”) was error because the ALJ did not perform a function-by-function analysis pursuant to Social Security Ruling (“SSR”) 96-8p. She further maintains that the ALJ’s failure explicitly to address the drowsiness side-effect of her medication and her reaction to stress was error. We will affirm the ALJ’s determination of Bayliss’s RFC if the ALJ applied the proper legal standard and his decision is supported by substantial evidence. Morgan, 169 F.3d at 599. In making his RFC determination, the" }, { "docid": "8246522", "title": "", "text": "because the physicians had “provided specific reasons for their opinions about the claimant’s residual functional capacity, showing that the opinions were grounded in the evidence in the case.” (AR at 20.) Thus, the ALJ concluded that “[t]he majority of the objective evidence shows normal findings, and there were no statements from providers that the claimant could not work, with the exception of one opinion ... which can be discounted.” (AR at 21.) Contrary to plaintiffs contention, this analysis adequately “build[s] an accurate and logical bridge from the evidence to [the ALJ’s] conclusion.” Lane-Rauth v. Barnhart, 437 F.Supp.2d 63, 67 (D.D.C.2006) (quoting Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir.2002)) (internal quotation marks omitted). Moreover, Drs. Dennis and Wallace each completed Medical Examination Reports that contained findings consistent with many of the ALJ’s specific determinations about plaintiffs RFC. For example, Dr. Dennis characterized the degree of plaintiffs functional limitations as “moderate” and indicated that plaintiff could frequently lift or carry 10 pounds. (AR at 185.) In his report, Dr. Wallace found limita tions on plaintiffs abilities to engage in various physical activities such as walking, standing, stooping, kneeling, lifting, pushing, and pulling. (AR at 194.) While the ALJ did not specifically mention these findings in his decision, he was clearly aware of them since he adopted physical limitations in conformance with the findings and, as discussed in more detail below, he specifically referred to Dr. Dennis’ report. While many of the ALJ’s determinations regarding plaintiffs RFC find substantial support in the record, it is a closer question whether the ALJ’s findings that plaintiff could occasionally lift 20 pounds and walk or stand for up to four hours and sit for up to six hours per eight hour day are supported by substantial evidence since these findings were based only on the assessments of state agency physicians who did not examine plaintiff. However, the Court need not decide this issue because the ALJ’s alternative disposition that plaintiff could perform sedentary work is supported by substantial evidence. As the ALJ noted, “even when the limitations were arguendo made more restrictive to include" }, { "docid": "14602841", "title": "", "text": "ALJ finding. Griffith v. Astrue, No. 08-CV- 6004, 2009 WL 909630, at *9 n. 9 (W.D.N.Y. July 27, 2009). Here, although Dr. Kamin’s opinion was based' on only part of the overall administrative record, the treatment notes and opinions in. the record before and after Dr. Kamin’s opinion demonstrate substantially similar limitations and findings. Dr. Goodrich’s treatment summary contained information about Plaintiffs treatment history, and this information was largely incorporated into Dr. Dawood’s treatment notes, which were available to Dr. Kamin. (Tr. 388-89). Dr. Dawood’s August 11, 2012 opinion largely mirrored his June 22, 2011 opinion, which was provided to Dr. Kamin for review. (Tr. 301-18, 373-78, 382-87). As a result, there was no significantly new medical evidence produced after Dr. Kamin’s opinion that would have likely impacted Dr. Kamin’s opinion. See Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir.2010) (finding harmless error where the ALJ’s consideration of a doctor’s report would not have changed the ALJ’s adverse determination). Given this particular administrative record and the circumstances of this case, the ALJ did not err when she assigned “great weight” to the medical source statement provided by Dr. Kamin but “little weight” to the opinions of Dr. Dawood. b. Credibility Determination Plaintiff argues that the ALJ failed to follow the appropriate legal standard when evaluating Plaintiffs credibility; (Dkt. 7-1 at 27). The Social Security regulations require a two-step process for the ALJ to consider the extent to which subjective evidence of symptoms can reasonably be accepted as consistent with the medical and other objective evidence. Brownell v. Comm’r of Soc. Sec., No. L05-CV-0588 (NPM/VEB), 2009 WL 5214948, at *3 (N.D.N.Y. Dec. 28, 2009). First, the ALJ considers whether the medical evidence shows any impairment “which could reasonably be expected to produce the pain or other symptoms alleged....” 20 C.F.R. § 404.1529(a). Second, if an impairment is shown, the ALJ must evaluate the “intensity, persistence, or functionally limiting effects” of a claimant’s symptoms to determine the extent to which they limit the claimant’s capacity to work. 20 C.F.R. § 404.1529(b). When the objective medical evidence alone does not substantiate the" }, { "docid": "15054707", "title": "", "text": "saw Dr. Jasek in 2007, since the previous decision, and the doctor diagnosed fibromyalgia. But Dr. Jasek’s notes contained no mention of the effects of plaintiffs obesity or its effects on his fibromyalgia. (Tr. at 24.) The ALJ further noted that Dr. Jasek reviewed no lab reports, which could be used to confirm the diagnosis of fibromyalgia. Finally, the record contained no indication that plaintiff followed up with Dr. Jasek, as the doctor recommended. The ALJ noted that the only other new medical evidence pertained to plaintiffs June 2007 cardiac catheterization. The surgery was successful, and plaintiff was discharged the following day with instructions to follow up with his doctor. Based primarily on his appearance at the hearing and his daily activities, the ALJ rejected plaintiffs testimony of greater limitations. (Tr. at 25.) Based on the RFC, the ALJ again concluded that plaintiff could not perform his past work but could perform other jobs identified by the VE including light industrial assembler, light production inspector, light hand packager, general office clerk, bench work assembler, security guard monitor and food preparer. The ALJ therefore found plaintiff not disabled and denied the application. (Tr. at 24-27.) III. DISCUSSION Plaintiff argues that the ALJ erred in (1) evaluating the treating source reports from Drs. Courier, Lanzarotti and Dresden; (2) finding his mental impairment non-severe; (3) assessing the Listings; and (4) determining credibility. I address each argument in turn. A. Treating Source Reports 1. Legal Standard Because of their greater familiarity with the claimant’s conditions and circumstances, the SSA affords medical opinions from a claimant’s treating physicians special consideration. If such an opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the case record, the ALJ must give it “controlling weight.” SSR 96-8p; Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir.2000). Even if the ALJ finds that a treating source opinion does not meet the standard for controlling weight, he may not simply reject it. SSR 96-2p. Rather, he must determine the weight to give the opinion by considering various factors, including the" }, { "docid": "22907789", "title": "", "text": "related reasons for rejecting Dr. Riley’s assessment. The ALJ reasoned that Dr. Riley’s opinions “are quite conclusory, providing very little explanation of the evidence relied on in forming that opinion.” The ALJ also opined that Dr. Riley’s conclusions were contrary to the medical evidence and to Dr. Riley’s own treatment notes. “[A]n ALJ may discredit treating physicians’ opinions that are conclusory, brief, and unsupported by the record as a whole or by objective medical findings.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.2004) (emphasis added) (citation omitted). Indeed, Dr. Riley’s assessments are of the “check-box” form and contain almost no detail or explanation. But the record supports Dr. Riley’s opinions because they are consistent both with Claimant’s testimony at the hearing and with Dr. Riley’s own extensive treatment notes which, as discussed above, the ALJ largely overlooked. The ALJ clearly erred in his assessment of the medical evidence, overlooking nearly a dozen reports related to head, neck, and back pain. The government offers a third reason: It was proper for the ALJ to reject Dr. Riley’s assessment because Dr. Riley relied primarily on Claimant’s own subjective reports. “An ALJ may reject a treating physician’s opinion if it is based to a large extent on a claimant’s self-reports that have been properly discounted as incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.2008) (internal quotation marks omitted). The government’s argument fails for two independent reasons. First, the ALJ never gave this reason for rejecting Dr. Riley’s opinion. We reiterate that we “are constrained to review the reasons the ALJ asserts.” Connett, 340 F.3d at 874. Second, as noted above, the ALJ failed to give specific, clear, and convincing reasons for discrediting Claimant’s testimony. Because the ALJ did not “properly diseount[ ]” Claimant’s testimony, this reason fails. Tommasetti, 533 F.3d at 1041 (emphasis added). We conclude that, in rejecting Dr. Riley’s assessment, the ALJ did not give specific and legitimate reasons supported by substantial evidence. C. Remedy Because the ALJ erred, we next address the proper remedy. On this point, the parties offer starkly differing views." }, { "docid": "22636878", "title": "", "text": "the ultimate question of disability, she must provide “specific and legitimate” reasons for rejecting the opinion of a treating physician. Lester, 81 F.3d at 830-31. “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989) (citation omitted). The ALJ complied with Magallanes and provided specific and legitimate reasons for rejecting Dr. Nachenberg’s opinion that are supported by the entire record. The ALJ stated that Dr. Nachenberg’s assessment was essentially a “rehashing of claimant’s own statements,” and was therefore undermined by the ALJ’s finding that Tommasetti was not credible. An ALJ may reject a treating physician’s opinion if it is based “to a large extent” on a claimant’s self-reports that have been properly discounted as incredible. Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir.1999) (citing Fair v. Bowen, 885 F.2d 597, 605 (9th Cir.1989)). A review of Dr. Nachenberg’s records reveals that they largely reflect Tommaset-ti’s reports of pain, with little independent analysis or diagnosis. Additionally, Dr. Wiseman, the consulting medical expert, testified that Dr. Nachenberg’s Questionnaire primarily reflected Tommasetti’s self-assessment and subjective willingness to work. Thus, the ALJ’s adverse credibility determination supports the limited rejection of Dr. Nachenberg’s opinion because it was primarily based on Tomma-setti’s subjective comments concerning his condition. Further, after discussing Tommasetti’s medical history and treatments in detail, the ALJ found that Dr. Nachenberg’s Questionnaire responses were inconsistent with the medical records. For example, the ALJ stated that the ultimate conclusions from Dr. Nachenberg’s Questionnaire regarding the extent of Tommasetti’s ability to stand and sit and his need for breaks “did not mesh with her objective data or history.” Indeed, Dr. Nachen-berg’s medical records do not provide support for the limitations set out in the Questionnaire. The incongruity between Dr. Nachenberg’s Questionnaire responses and her medical records provides an additional specific and legitimate reason for rejecting Dr. Nachenberg’s opinion of Tommasetti’s limitations. Tommasetti contends that Dr. Wise-man’s “deferral” to Dr. Nachenberg’s assessment weighs against the ALJ’s" }, { "docid": "22907788", "title": "", "text": "an issue of secondary gain—-he did not affirmatively find that Claimant was exaggerating or malingering. Because the ALJ’s other reasons—discussed above— are not supported by substantial evidence, and because this reason is weak on this record, we conclude that the ALJ erred in discrediting Claimant’s testimony. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.2008) (holding that, when the ALJ errs, we must inquire “whether the ALJ’s decision remains legally valid, despite such error”). B. Dr. Riley’s Assessment Dr. Riley, Claimant’s treating physician, found that Claimant experienced headaches on a regular basis that “seriously affect[ed]” her ability to function. All other treating and examining doctors concluded that Claimant could perform medium exertion work with only minor limitations. The ALJ adopted the consensus view and rejected Dr. Riley’s view. Claimant argues that the ALJ erred. As noted, because Dr. Riley’s ,opinion was contradicted, we review the ALJ’s rejection of Dr. Riley’s opinion for “specific and legitimate reasons that are supported by substantial evidence.” Bayliss, 427 F.3d at 1216. The ALJ gave two related reasons for rejecting Dr. Riley’s assessment. The ALJ reasoned that Dr. Riley’s opinions “are quite conclusory, providing very little explanation of the evidence relied on in forming that opinion.” The ALJ also opined that Dr. Riley’s conclusions were contrary to the medical evidence and to Dr. Riley’s own treatment notes. “[A]n ALJ may discredit treating physicians’ opinions that are conclusory, brief, and unsupported by the record as a whole or by objective medical findings.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.2004) (emphasis added) (citation omitted). Indeed, Dr. Riley’s assessments are of the “check-box” form and contain almost no detail or explanation. But the record supports Dr. Riley’s opinions because they are consistent both with Claimant’s testimony at the hearing and with Dr. Riley’s own extensive treatment notes which, as discussed above, the ALJ largely overlooked. The ALJ clearly erred in his assessment of the medical evidence, overlooking nearly a dozen reports related to head, neck, and back pain. The government offers a third reason: It was proper for" }, { "docid": "22907787", "title": "", "text": "One can dislike (or like) a job and yet be forced to miss some days from work because of illness or pain. Rather, the ALJ apparently read Dr. Riley’s note as questioning whether Claimant was exaggerating her symptoms in order to miss work that she disliked. Read in that way, sub stantial evidence arguably supports the ALJ’s finding. But even if we were to read Dr. Riley’s note thus, we conclude that this one weak reason is insufficient to meet the “specific, clear and convincing” standard on this record. Molina, 674 F.3d at 1112; see also Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir.2007) (holding that “we must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner’s conclusion, and may not affirm simply by isolating a •specific quantum of supporting evidence.” (citation and internal quotation marks omitted)). Dr. Riley treated Claimant for several years, and this is the only statement of its type. Moreover, Dr. Riley merely suggested that perhaps there was an issue of secondary gain—-he did not affirmatively find that Claimant was exaggerating or malingering. Because the ALJ’s other reasons—discussed above— are not supported by substantial evidence, and because this reason is weak on this record, we conclude that the ALJ erred in discrediting Claimant’s testimony. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.2008) (holding that, when the ALJ errs, we must inquire “whether the ALJ’s decision remains legally valid, despite such error”). B. Dr. Riley’s Assessment Dr. Riley, Claimant’s treating physician, found that Claimant experienced headaches on a regular basis that “seriously affect[ed]” her ability to function. All other treating and examining doctors concluded that Claimant could perform medium exertion work with only minor limitations. The ALJ adopted the consensus view and rejected Dr. Riley’s view. Claimant argues that the ALJ erred. As noted, because Dr. Riley’s ,opinion was contradicted, we review the ALJ’s rejection of Dr. Riley’s opinion for “specific and legitimate reasons that are supported by substantial evidence.” Bayliss, 427 F.3d at 1216. The ALJ gave two" }, { "docid": "8253037", "title": "", "text": "Dr. Zeidman described plaintiffs limitations as he had on the prior questionnaire, except for indicating that during the period in question plaintiff could occasionally lift or carry up to 10 pounds, and concluding that plaintiff was “partially disabled” (Tr. 351). The ALJ rejected Dr. Zeidman’s questionnaires, citing the fact that the initial questionnaire questions had been “asked of patient,” rendering the entire questionnaire a self-report which was entitled to little weight. The ALJ also rejected Dr. Zeidmaris second questionnaire, which made a similar assessment but was specific to the closed period for which disability was claimed, and cited objective medical findings. The ALJ found that the credibility of the later questionnaire was undermined because: (1) plaintiffs attorney had stated to Dr. Zeidman that “the opinion of a treating physician is binding on the government ... in the absence of substantial evidence to the contrary”; and (2) Dr. Zeidman had not been notified that plaintiff had returned to nurse’s aide work at the medium exertional level on or after June 6, 2005. (Tr. 18). Instead, the ALJ chose to rely instead upon the assessments of consulting physician Dr. Sirotenko, who found on July 16, 2004 that plaintiff was able to perform work so long as he had frequent opportunities to alternate between sitting, standing and walking, and was not required to lift objects beyond a moderate degree of physical exertion. (Tr. 17, 328). The ALJ also found support for her conclusions in the opinion of a state agency disability examiner, who although not a physician, opined that plaintiff could perform light work. (Tr. 17). Nonetheless, the ALJ cited no evidence of record to contradict Dr. Zeidman’s opinion. I find that the ALJ’s conclusion is not supported by substantial evidence. A treating physician’s opinion is entitled to controlling weight if it is well-supported by medical findings and not inconsistent with other substantial evidence. See Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir.1999). If an ALJ opts not to afford controlling weight to the opinion of a treating physician, the ALJ must consider: (1) the examining relationship; (2) the extent of the" }, { "docid": "7725163", "title": "", "text": "ALJ is charged with determining credibility and resolving the conflict....” Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003) (citation omitted). “If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.... ” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citation omitted). “The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.2009) (citation and alteration omitted). When weighing the medical evidence as part of assessing the claimant’s testimony regarding the severity of his impairments, the ALJ gave Dr. Ho’s opinion less weight than Dr. Staley’s opinion because the ALJ concluded that Dr. Ho’s opinion “was based primarily on [Chaudhry’s] self-report of limitations.” As the ALJ noted, Dr. Ho’s opinion was predicated in part on her erroneous belief that Chaudhry’s wheelchair and cane were prescribed. Chaudhry’s non-prescribed use of a wheelchair and unwarranted use of a cane also factored into the ALJ’s determination that Chaudhry’s subjective expression of his limitations lacked credibility. The ALJ’s conclusion was supported by the observations of many of the providers who evaluated Chaudhry, including Dr. Ho’s own observation that Chaudhry appeared not to exert adequate effort during testing. Dr. Staley’s finding of chronic pain syndrome was echoed by many of Chaudhry’s other providers or reviewers, including his treating physician. We therefore conclude that the ALJ properly relied on medical evidence that undermined Chaudhry’s subjective assessment of his limitations. Because Dr. Ho and Dr. Staley both based their opinions on Chaudhry’s x-rays and MRI, Chaudhry’s use of a wheelchair appears to have been the primary difference between their conflicting opinions. And Dr. Ho was undoubtedly influenced by the mistaken impression that the wheelchair was prescribed. Because the ALJ’s conclusions are supported by the record, and because the ALJ provided specific and legitimate reasons supported by substantial evidence to give less weight to Dr. Ho’s" }, { "docid": "10476005", "title": "", "text": "score of 70 would represent only mild symptoms.” Tr. 25. However, there was no testimony on this point from any mental health professional. Dr. Moser’s testimony did not discuss plaintiffs GAF score (if that was in fact what Dr. Kjaer - was describing), the significance of a given rating, or whether that rating would be inconsistent with Dr. Kjaer’s overall findings. Nor did the ALJ ask Dr. Kjaer to explain this part of his findings. The record does not disclose an adequate basis for the ALJ to make his own medical findings on this issue. See Gonzalez-Perez v. Secretary, 812 F.2d 747, 749 (1st Cir.1987) (ALJ lacked expertise to reject a physician’s opinion); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir.1985) (ALJ’s independent review and interpretation of laboratory reports, was an impermissible substitution of ALJ’s own judgment for that of a physician). On these facts, the Secretary erred by rejecting the findings of an examining psychiatrist in favor of a non-examining psychologist. The Secretary also erred by finding plaintiff was not under a disability from January 1, 1990 through July 15, 1992 when there was insufficient evidence to support that finding and it was contradicted by the opinion of an examining psychiatrist. d. Credibility: The Secretary’s findings rely heavily on a determination that plaintiffs subjective complaints were not credible. On that basis, the Secretary discounted not only plaintiffs subjective complaints but also the opinions of all her doctors, whose opinions were said to have been tainted by plaintiffs misrepresentations. Once a claimant produces objective medical evidence of an underlying impairment, an adjudicator may not reject a claimant’s subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir.1991) (en banc). Though the adjudicator .may still find the allegations of severity not ■credible, the adjudicator must make specific findings which support this conclusion. Id. In this case, the Secretary’s own medical experts not only found there was some objective evidence of an underlying impairment that could cause the reported symptoms, but have repeatedly" }, { "docid": "15054710", "title": "", "text": "ALJ rejected Dr. Courier’s report because she provided no specific clinical testing data to support her diagnoses or limitations (Tr. at 68), and the treatment notes from Dr. Courier and other physicians contained nothing to account for plaintiffs allegations of joint problems and muscle pain (Tr. at 69). The ALJ also paraphrased one of Dr. Courier’s treatment notes, in which she stated that she was not sure what to do with plaintiff. (Tr. at 68.) He therefore concluded that Dr. Courier based her physical limitations primarily on plaintiffs subjective complaints. (Tr. at 69.) Regarding Dr. Courier’s mental limitations, the ALJ noted that plaintiff had received little mental health treatment, and that Dr. Halvorson indicated that plaintiffs depression was related to his physical health, that any limitations were related to physical complaints, and that his GAF had been 70 within the last year. The ALJ further noted that the SSA consultants and the medical expert found only mild to moderate limitations. (Tr. at 69.) The ALJ rejected Dr. Lanzarotti’s report because the doctor believed all of plaintiffs symptoms to be due to incisional pain and released plaintiff to full activity back at work. (Tr. at 68) The ALJ further noted that testing completed by Drs. Ahmed and Lowell revealed little (Tr. at 69-69), with Dr. Lowell stating that she was not sure what she was dealing with, and that plaintiffs complaints might be psychosomatic (Tr. at 68). The ALJ concluded that “the opinions of Drs. Lanzarotti and Courier as to the claimant’s limitations are inconsistent with their own medical notes and appear to be based substantially on the claimant’s self reports rather than demon strable signs and symptoms.” (Tr. at 70.) As noted above, the ALJ did not separately address Dr. Dresden’s report, because he erroneously believed that it had been prepared by Dr. Courier. (Tr. at 68.) There are several problems with the ALJ’s analysis. First, Drs. Courier and Dresden based their physical limitations primarily on a diagnosis of fibromyalgia, but the ALJ refused to find plaintiffs fibromyalgia a severe impairment in the 2006 decision, revealing a serious misunderstanding of" }, { "docid": "7725165", "title": "", "text": "opinion, we conclude that the ALJ did not err in basing the RFC on Dr. Staley’s findings rather than Dr. Ho’s. See Bayliss, 427 F.3d at 1216; see also Bray, 554 F.3d at 1228. The ALJ gave Dr. Schultz’s opinion less weight than Dr. Kraft’s because of Dr. Kraft’s conclusion that Dr. Schultz’s diagnosis of somatoform disorder was incompatible with depression. As the ALJ noted, the record reflects that other providers or reviewers agreed that Chaudhry’s alleged depression did not constitute an impairment and that Chaudhry repeatedly failed to seek treatment for his depression. We conclude that the ALJ did not err in basing the RFC on Dr. Kraft’s opinion rather than Dr. Schultz’s. See Bray, 554 F.3d 1228 (approving rejecting of medical opinion that is inconsistent with clinical findings). Chaudhry disagrees with the ALJ’s determination that he lacked credibility. Chaudhry argues that any lack of credibility is explained by the dependency and somatization found by Dr. Schultz. Likewise, Chaudhry contends that the reviewing physicians’ finding of malingering is outweighed by the examining physicians’ opinions. The ALJ must support his credibility finding “with specific, clear and convincing reasons.” Taylor v. Comm’r of Soc. See. Admin., 659 F.3d 1228, 1234 (9th Cir.2011) (citation omitted). “The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported by substantial evidence, the court may not engage in second-guessing.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.2008) (citations and internal quotation marks omitted). “[I]f a claimant complains about disabling pain but fails to seek treatment, or fails to follow prescribed treatment, for the pain, an ALJ may use such failure as a basis for finding the complaint unjustified or exaggerated .... ” Orn v. Astrue, 495 F.3d 625, 638 (9th Cir.2007) (citation omitted). Chaudhry’s" }, { "docid": "22636877", "title": "", "text": "from this fact that Tommasetti was not as physically limited as he purported to be. Id The ALJ’s reasons for discounting Tommasetti’s testimony are supported by substantial evidence in the record. Accordingly, we will not disturb the ALJ’s adverse credibility finding. B. Rejection of Dr. Nachenberg’s Opinion Tommasetti next argues that the ALJ improperly discounted the opinion of his treating physician, Dr. Andrea Nachenberg, regarding Tommasetti’s physical limitations. Dr. Nachenberg completed the Questionnaire, in which she opined that Tommasetti could sit continuously for ten minutes, sit for four hours in an eight-hour workday, stand continuously for thirty minutes, stand/walk for two hours in an eight-hour workday, required an ability to sit and stand at will, needed unscheduled breaks, and could at most occasionally lift ten pounds. The ALJ rejected Dr. Na-chenberg’s opinion only to the limited extent that it ruled out Tommasetti’s “capacity for sedentary work” during the period in question. The ALJ must consider all medical opinion evidence. 20 C.F.R. § 404.1527(b). Although the ALJ is not bound by an expert medical opinion on the ultimate question of disability, she must provide “specific and legitimate” reasons for rejecting the opinion of a treating physician. Lester, 81 F.3d at 830-31. “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989) (citation omitted). The ALJ complied with Magallanes and provided specific and legitimate reasons for rejecting Dr. Nachenberg’s opinion that are supported by the entire record. The ALJ stated that Dr. Nachenberg’s assessment was essentially a “rehashing of claimant’s own statements,” and was therefore undermined by the ALJ’s finding that Tommasetti was not credible. An ALJ may reject a treating physician’s opinion if it is based “to a large extent” on a claimant’s self-reports that have been properly discounted as incredible. Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir.1999) (citing Fair v. Bowen, 885 F.2d 597, 605 (9th Cir.1989)). A review of Dr. Nachenberg’s records reveals that they largely reflect" }, { "docid": "15054709", "title": "", "text": "length, nature and extent of the claimant and physician’s treatment relationship; the degree to which the opinion is supported by the evidence; the opinion’s consistency with the record as a whole; and whether the doctor is a specialist. 20 C.F.R. § 404.1527(d). “In many cases, a treating source’s medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.” SSR 96-2p. Regardless of the weight the ALJ elects to give the treating source opinion, he must always “give good reasons” for his decision. 20 C.F.R. § 404.1527(d)(2). Finally, the “ALJ must not substitute his own judgment for a physician’s opinion without relying on other medical evidence or authority in the record.” Clifford, 227 F.3d at 870; see also Rohan v. Chater, 98 F.3d 966, 970 (7th Cir.1996). 2. Analysis As indicated, the ALJ in his 2008 decision essentially adopted his conclusions about the medical evidence and treating source reports from the 2006 decision. (See Tr. at 24.) In the earlier decision, the ALJ rejected Dr. Courier’s report because she provided no specific clinical testing data to support her diagnoses or limitations (Tr. at 68), and the treatment notes from Dr. Courier and other physicians contained nothing to account for plaintiffs allegations of joint problems and muscle pain (Tr. at 69). The ALJ also paraphrased one of Dr. Courier’s treatment notes, in which she stated that she was not sure what to do with plaintiff. (Tr. at 68.) He therefore concluded that Dr. Courier based her physical limitations primarily on plaintiffs subjective complaints. (Tr. at 69.) Regarding Dr. Courier’s mental limitations, the ALJ noted that plaintiff had received little mental health treatment, and that Dr. Halvorson indicated that plaintiffs depression was related to his physical health, that any limitations were related to physical complaints, and that his GAF had been 70 within the last year. The ALJ further noted that the SSA consultants and the medical expert found only mild to moderate limitations. (Tr. at 69.) The ALJ rejected Dr. Lanzarotti’s report because the doctor believed all of" }, { "docid": "23088210", "title": "", "text": "“opinion” was a checkbox in Dr. Boyd’s “Summary Conclusions” and was not repeated in his narrative “Functional Capacity Assessment.” The ALJ did not ignore Dr. Boyd’s opinion; rather, he explicitly noted that Dr. Boyd had checked this box and gave the whole of Dr. Boyd’s opinion, including the narrative portion, “great weight” in crafting Rounds’ RFC. Rounds also argues that the ALJ improperly rejected some of Dr. McKenna’s “Treatment Recommendations” that Rounds should (a) avoid math or use a calculator, (b) write information down and use various memory aids, (c) request that instructions be repeated and provided both verbally and in writing, and (d) limit customer or public contact. However, Dr. McKenna’s formal conclusions were set out in a separate section of her report subtitled “Clinical Formulation/Prognosis” and Rounds does not contend that the ALJ ignored those conclusions. An ALJ may rationally rely on specific imperatives regarding a claimant’s limitations, rather than recommendations. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir.2008). In addition, the ALJ is responsible for translating and incorporating clinical findings into a succinct RFC. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir.2008). We hold that the ALJ’s RFC determination — which limited Rounds to “one to two step tasks with no public contact, no teamwork and limited coworker contact” — adequately incorporated the opinions of Dr. McKenna and Dr. Boyd. IV. The ALJ’s Consideration of Rounds’ Testimony Rounds argues that the ALJ improperly rejected her testimony. Having determined that Rounds’ medically determinable impairments could reasonably be expected to cause her alleged symptoms, “the ALJ may reject the claimant’s testimony regarding the severity of her symptoms only if he makes specific findings stating clear and convincing reasons for doing so.” Smolen, 80 F.3d at 1284. “The ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion.” Id. To assess a claimant’s credibility, the ALJ may consider, among other factors, “ordinary techniques of credibility evaluation,” “inadequately explained failure to seek treatment or to follow a prescribed course of treatment,” and “the claimant’s daily" }, { "docid": "23574113", "title": "", "text": "challenge to the ALJ’s decision to discount Juszczyk’s testimony and Dr. Stanley’s GAF assessment. Therefore, we will address these two points before addressing specifically the four arguments Juszczyk raises on appeal. A. The ALJ found Juszczyk’s testimony to be not wholly credible. The ALJ explained this determination was supported by evidence of Juszczyk’s work history. He was in and out of work for many years and also did not report earnings at a level indicating substantial gainful activity, even in the absence of an alleged disability. The ALJ also explained that the objective medical evidence, including clinical findings, did not support Juszczyk’s testimony as to the depth and severity of his physical impairments. We defer to the ALJ’s well-supported determination that Juszczyk’s testimony was not wholly credible. Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir.2003); see also Casey v. Astrue, 503 F.3d 687, 696 (8th Cir.2007) (deferring to the ALJ’s credibility finding because the ALJ pointed to substantial evidence in the record supporting her decision to discount the claimant’s subjective allegations). Additionally, we note that Dr. Pulcher also doubted Juszczyk’s credibility and that Dr. King determined Juszczyk was not more than mildly limited. “If an ALJ explicitly discredits the claimant’s testimony and gives good reason for doing so, we will normally defer to the ALJ’s credibility determination.” Gregg, 354 F.3d at 714. B. The ALJ did not rely on Dr. Stanley’s assessment of Juszczyk’s mental limitations. ALJs are not obliged to defer to treating physician’s medical opinions unless they are “well-supported by medically acceptable clinical and laboratory diagnostic techniques and [are] not inconsistent with the other substantial evidence in the record.” Ellis v. Barnhart, 392 F.3d 988, 995 (8th Cir.2005) (quotations omitted). The ALJ rejected Dr. Stanley’s assessment because it was inconsistent with Dr. Stanley’s own treatment notes, with objective testing, and with other medical evidence in the record. Our review of the record, including reports from Dr. Pulcher, Dr. King, Dr. Flageman, and the Truman Medical Center confirms the ALJ’s conclusion. Juszczyk argues that the ALJ rejected Dr. Stanley’s assessment based on credibility judgments, speculation, or lay opinion," } ]

[ { "docid": "12973243", "title": "", "text": "be adjusted accordingly by the parties thereto so that the contract price to the contractor under any contract or to any subcontractor under any subcontract shall be increased by an amount equal to any such increased cost or decreased in an amount equal to such decreased cost. [Italics supplied.] Section 5 of the special conditions of the contract (Specifications pp. 11-18) provides as follows: Sec. 5. Wage Kates * * * 1. Subject to the Specification, and the Contract, the hourly wage rates to be paid by the Contractors shall be not less than the following: * * * ******* 5. The foregoing specified- wage rates are minimum rates only and the Government will not consider any claims for additional compensation made by the Contractor because of payment by the Contractor of any wage rate m excess of the applicable rate contained herein. All dispute in regard to the paiyment of wages in excess of those specified herein shall be adjusted by the Contractor.’ [Italics supplied] Plaintiffs further allege that during the period of the contract the defendant authorized increased working hours and increased wages on a general scale in connection with a Resettlement project known as Green Hills in North Cincinnati, and that such Government work being carried on contemporaneously with plaintiffs’ work the defendant thereby created a condition which forced plaintiffs to increase wages in order to insure the timely and satisfactory completion of the work for which they had contracted. It is further alleged that the defendant recognized that a fundamental change in economic conditions had taken place and consequently it became the duty of the defendant, pursuant to the terms of the contract, to adjust the contract price accordingly. In the light of the provisions of the contract and specifications we do not think the allegations in reference to Claim B are sufficient to state a cause of action. The contract did not purport to set or determine the wages which should be paid in connection with the project. It simply established minimum wage rates below which plaintiffs might not go. It provided a flooring, but" } ]

[ { "docid": "4708553", "title": "", "text": "Wage Adjustment Board and it asked the contracting agency for instructions. Plaintiff also advised the contracting officer that if it did have to pay the increased rates, it desired to make claim on the Government for additional compensation on account of such increases. On September 6, 1944, defendant’s construction supervisor wrote to plaintiff advising that under the terms of paragraph 6(d) (2) of the contract specifications, as amended, no claims for extra compensation could be based upon increased wages granted at the request of the contractor or the union. As to whether plaintiff could lawfully pay the increased rate, the letter contained the following statement: \" * * * the interim of [sic] decision [of the Wage Adjustment Board] has the force of law and it is the contractor’s authority for posting the changed wage rate.” Plaintiff concedes that it could not have obtained the skilled laborers necessary to carry on the job without paying the increased rates authorized by the Wage Adjustment Board for carpenters, plasterers, and lathers, and also for numerous other trades which later obtained wage increases from the Board. Plaintiff’s requests for reimbursement for such increases were all denied by the contracting agency. Plaintiff contends that it is entitled to be reimbursed for the increased costs resulting from the wage increases authorized by the Wage Adjustment Board for several reasons. First, plaintiff urges that the letter of September 6, 1944, from defendant’s construction supervis- or, amounted to a “directive order” from an authorized agent of defendant to plaintiff that the increases would have to be paid. Plaintiff concludes that it is accordingly entitled to recover the extra costs occasioned by its compliance with this directive order, on the authority of this court’s decisions in A. J. Paretta Contracting Co. v. United States, 109 Ct.Cl. 324, Sunswick Corp. v. United States, 75 F.Supp. 221, 109 Ct.Cl. 772, certiorari denied 334 U.S. 827, 68 S.Ct. 1337, 92 L.Ed. 1755, and Poirier & McLane Corporation v. United States, 120 F.Supp. 209, 128 Ct.Cl. 117. The Poirier case is not apposite inasmuch as it did not involve a directive order" }, { "docid": "14922335", "title": "", "text": "fact that following the authorization by the Wage Adjustment Board for the payment of the increased wages on this' contract, plaintiffs were reimbursed for the increased price of the labor on all work covered by change orders issued subsequent to the Wage Adjustment Board decisions. In this connection it should be noted that the Wage Adjustment Board had authorized the increases in connection with this contract for the payroll periods following the various dates on which the increased rates were authorized. As a result of the Wage Adjustment Board decisions, these increased rates became the prevailing rates for the various trades involved in the Denver area. The change orders involving additional work were, in effect, new contracts let to plaintiffs and it was perfectly proper for the Government to estimate the cost of those contracts on the basis of the then prevailing wage rates in the area. Such action was in no sense a recognition by defendant 'that it was obligated to pay increased rates on the unmodified portion of the original cdntract. In support of its other contentions, plaintiffs rely upon this court’s decision in the case of Sunswick Corp. v. United States, 75 F.Supp. 221, 222, 109 Ct.Cl. 772, certiorari denied 334 U.S. 827, 68 S.Ct. 1337, 92 L.Ed. 1755. The Sunswick case involved a lump sum construction contract in which the contractor was directed to pay all labor employed on the work at wage rates “not less or more than those stated in the specifications (subject to Executive Order Number 9250 and the General Orders and Regulations issued thereunder)”. General Order No. 13, issued pursuant to Executive Order 9250, provided that “the Wage Adjustment Board shall have power * * * (1) to hear and issue directive orders in labor dispute cases, and (2) to make final rulings on voluntary wage and salary adjustments requiring the approval of the National Wage Labor Board.” Prior- to making its bid, the Sunswick Corporation investigated conditions at the site of the work arid determined to its satisfaction that the wage rate for carpenters, among others, determined by the Secretary of" }, { "docid": "23597510", "title": "", "text": "the same site, the court may conclude that in view of the respective undertakings of the parties, as disclosed in their contract, the Government by such conduct cannot be said to have “knowingly hindered” the contractor in his performance, or “culpably increased” his costs, notwithstanding there ultimately results from the Government’s conduct a condition wherein the contractor finds it necessary to increase wages in order to insure the timely completion of his work. This conclusion was reached in United States v. Beuttas, 324 U. S. 768, and by this court in LeVeque et al. v. United States, supra, where, in each instance, the contractor by the express terms of his contract undertook to pay not less than the wage rate prescribed in the specifications, and where the Government, having specifically provided for an adjustment of the contract price in the event the minimum wage rate prescribed should be changed by a certain designated Government official, expressly stipulated that “the Government will not consider any claims for additional compensation made by the contractor because of payment by the contractor of any wage rate in excess of the applicable rate” contained in the specifications, and that “all disputes in regard to the payment of wages in excess of those specified herein shall be adjusted by the contractor.” In such cases it is obvious that the Government’s act does not directly compel the contractor to pay the increased labor costs. Whether the particular action of the Government “caused” the increase in wages, in the sense necessary to make applicable the principle referred to hereinabove, must, in those circumstances, be determined by looking closely to what each party to the contract obligated itself to do with respect to the performance thereof. In York Engineering Co. v. United States, supra, it appeared that no direct action by the Government compelled the contractor to pay increased wages, the court, nevertheless, concluded on the facts that the contractor.was entitled to i’ecover its increased labor costs which resulted from the Government’s action in raising WPA wages for common labor from 35 cents to 50 cents, a figure in" }, { "docid": "1889437", "title": "", "text": "be changed by a certain designated Government official, expressly stipulated that “the Government will not consider any claims for additional compensation made by the contractor because of payment by the contractor of any wage rate in excess of the applicable rate” contained in the specifications, and that “all disputes in regard to the payment of wages in excess of those specified herein shall be adjusted by the contractor.” In such cases it is obvious that the Government’s act does not directly compel the contractor to pay the increased labor costs. Whether the particular action of the Government “caused” the increase in wages, in the sense necessary to make applicable the principle referred to hereinabove, must, in those circumstances, be determined by looking closely to what each party to the contract obligated itself to do with respect to the performance thereof. In York Engineering Co. v. United States, supra, it appeared that no direct action by the Government compelled the contractor to pay increased wages, the court, nevertheless, concluded on the facts that the contractor was entitled to recover its increased labor costs which resulted from the Government’s action in raising WPA wages for common labor from 35 cents to 50 cents, a figure in excess of the minimum rate provided for such labor in the plaintiff’s contract. The contractor was required by the contract to look to the United States Employment Service for the bulk of its workmen, with a preference in employment given to persons from the public relief rolls. It was found that the WPA wage increase from a rate 10 cents lower than the 45-cent rate the contractor had been paying to a rate 5 cents higher than such rate made it difficult or impossible for the latter to secure labor at its old rate. Notwithstanding the contractor’s undertaking was merely to pay not less than the minimum rate the court concluded that the increased cost of performance should be borne by the Government in view of the fact that the contract itself provided that the minimum rate established in the contract should be subject to change" }, { "docid": "14922338", "title": "", "text": "to the union’s claims and issued a directive order to plaintiff directing it to pay all carpenters on the project $1.42% per hour retroactive to the beginning of the project. We held that plaintiff’s contract giving effect to the clauses with reference to Executive Order 9250, obligated plaintiff to pay its carpenters either the $1.25 per hour rate specified as both the minimum and maximum rate, or in the event of a labor dispute, such other rate as, under the machinery set up pursuant to Executive Order .9250, plaintiff might be directed to pay. We concluded that plaintiff was required to pay the increased wages ordered by the Wage Adjustment Board directive order or subject itself to the penalty of either having the unpaid difference withheld, or its contract terminated, and that the War Department (the contracting agency) had, by the terms of its contract, delegated to the Wage Adjustment Board authority to modify by directive order the specifications as to such rates. Thus it resulted that the Government, in its capacity as a contracting party, imposed on the plaintiff a burden of performance which it was not intended by the contract should be borne by plaintiff without an adjustment of the contract price. The facts in the present case do not bring the case within the holding of the Sunswick case. There was no labor dispute and no directive order in the instant case. Plaintiffs were perfectly willing to pay the increased rates and voluntarily requested permission of the Wage Adjustment Board for the payment of such higher rates. The resulting actions of the Wage Adjustment Board on the various applications of plaintiffs did not direct or require plaintiffs to do anything. They merely authorized plaintiffs to pay the rates as requested, not retroactively, but beginning the payroll period following the date of the decisions. Plaintiffs also placed some reliance on the case of Paretta Contracting Co. v. United States, 109 Ct.Cl. 324. That case involved a wrongful order by the contracting officer directed to the contractor to pay. increased rates. In that case we.held that the activating cause" }, { "docid": "23597530", "title": "", "text": "proper interpretation of the contract here involved, we think the action which the Government took in this case through the decision of the Wage Adjustment Board which changed one of the labor classifications and added a new one and changed the wage rate fixed in the contract, was not a decision of the character above-mentioned. Having concluded that the cause of the increased wages is attributable to defendant as a contracting party, it remains to determine whether under the provisions of the contract this burden should be borne by plaintiff or defendant. Defendant’s contention on this point is that the contract provides no basis for requiring defendant to reimburse plaintiff for such increased cost of performance; that plaintiff was not justified in figuring its bid on the basis that no increase in the specified wage scale would be made without an adjustment in the amount payable to it, particularly where, as here, the contract discloses the possibility of wage increases and makes no express provision for reimbursement of the contractor in such event. In such circumstances, defendant says, it was incumbent upon the contractor when making its bid to provide for the contingency that a wage increase might be ■ordered pursuant to the provisions of Executive Order 9250, since no undertaking on the part of defendant, to reimburse plaintiff for increased labor costs resulting therefrom may properly be implied. In order to reach this conclusion the language employed in both the contract and the specifications with reference to wages must be read so as to exclude every possible implication favorable to plaintiff. The contract documents do not provide merely that the wage rates to be paid by the contractor shall be not less than those set forth in the specifications, nor declare that the Government will not consider any claims for additional compensation occasioned by payment of a wage rate in excess thereof, and that all disputes in regard to the payment of wages in excess of those specified shall be adjusted by the contractor, such as was written into the contracts involved in United States v. Beuttas, supra, and" }, { "docid": "1889436", "title": "", "text": "wages to be paid by the contractor on a certain project, thereafter sets a higher minimum wage level on a separate project at the same site, the court may conclude that in view of the respective undertakings of the parties, as disclosed in their contract, the Government by such conduct cannot be said to have “knowingly hindered” the contractor in his performance, or “culpably increased” his costs, notwithstanding there ultimately results from the Government’s conduct a condition wherein the contractor finds it necessary to increase wages in order to insure the timely completion of his work. This conclusion was reached in United States v. Beuttas, 324 U.S. 768, 65 S.Ct. 1000, 89 L.Ed. 566, and by this court in LeVeque et al. v. United States, supra, where, in each instance, the contractor by the express terms of his contract undertook to pay not less than the wage rate prescribed in the specifications, and where the Government, having specifically provided for an adjustment of the contract price in the event the minimum wage rate prescribed should be changed by a certain designated Government official, expressly stipulated that “the Government will not consider any claims for additional compensation made by the contractor because of payment by the contractor of any wage rate in excess of the applicable rate” contained in the specifications, and that “all disputes in regard to the payment of wages in excess of those specified herein shall be adjusted by the contractor.” In such cases it is obvious that the Government’s act does not directly compel the contractor to pay the increased labor costs. Whether the particular action of the Government “caused” the increase in wages, in the sense necessary to make applicable the principle referred to hereinabove, must, in those circumstances, be determined by looking closely to what each party to the contract obligated itself to do with respect to the performance thereof. In York Engineering Co. v. United States, supra, it appeared that no direct action by the Government compelled the contractor to pay increased wages, the court, nevertheless, concluded on the facts that the contractor was" }, { "docid": "4708554", "title": "", "text": "which later obtained wage increases from the Board. Plaintiff’s requests for reimbursement for such increases were all denied by the contracting agency. Plaintiff contends that it is entitled to be reimbursed for the increased costs resulting from the wage increases authorized by the Wage Adjustment Board for several reasons. First, plaintiff urges that the letter of September 6, 1944, from defendant’s construction supervis- or, amounted to a “directive order” from an authorized agent of defendant to plaintiff that the increases would have to be paid. Plaintiff concludes that it is accordingly entitled to recover the extra costs occasioned by its compliance with this directive order, on the authority of this court’s decisions in A. J. Paretta Contracting Co. v. United States, 109 Ct.Cl. 324, Sunswick Corp. v. United States, 75 F.Supp. 221, 109 Ct.Cl. 772, certiorari denied 334 U.S. 827, 68 S.Ct. 1337, 92 L.Ed. 1755, and Poirier & McLane Corporation v. United States, 120 F.Supp. 209, 128 Ct.Cl. 117. The Poirier case is not apposite inasmuch as it did not involve a directive order either on the part of the Wage Adjustment Board or the contracting agency, but rather a retroactive change by the Secretary of Labor in his earlier decision as to wage rates. The Sunswick case did involve a directive order issued by the Wage Adjustment Board in a wage dispute. In the instant case no such directive order was issued to plaintiff by the Board in connection with any of the increases in question. In the Paretta case defendant’s contracting officer issued an order to the contractor to pay an increased rate. In the instant case we do not think an order such as would create a liability on the defendant for the increased wages was issued to plaintiff. The letter of September 6, 1944, supra, on which plaintiff relies, was in response to plaintiff’s inquiry regarding the problem of whether or not it could lawfully pay the increased rate authorized by the Board for carpenters in the Baltimore area, in view of the fact that its contract provided that the only rates that could be" }, { "docid": "23597509", "title": "", "text": "is an implied condition of every contract that neither party will hinder the other in his discharge of the obligations imposed upon him, nor increase his cost of performance. LeVeque et al. v. United States, 96 C. Cls. 250; B-W Construction Co. v. United States, 101 C. Cls. 748 (reversed, 824 U. S. 768); York Engineering Co. v. United States, 103 C. Cls. 613 (certiorari denied, 327 U. S. 784) ; Clemmer Construction Co. v. United States, 108 C. Cls. 718; Paretta Contracting Co. v. United States, No. 46395, 109 C. Cls. 324. Applicability of this principle in a given case depends upon not only the nature of the act which is alleged to have increased the burden of performance but as well upon the intention of the parties, with respect to such act, either expressed or implied in the contract. If the Government, having let a contract which fixed the minimum wages to be paid by the contractor on a certain project, thereafter sets a higher minimum wage level on a separate project at the same site, the court may conclude that in view of the respective undertakings of the parties, as disclosed in their contract, the Government by such conduct cannot be said to have “knowingly hindered” the contractor in his performance, or “culpably increased” his costs, notwithstanding there ultimately results from the Government’s conduct a condition wherein the contractor finds it necessary to increase wages in order to insure the timely completion of his work. This conclusion was reached in United States v. Beuttas, 324 U. S. 768, and by this court in LeVeque et al. v. United States, supra, where, in each instance, the contractor by the express terms of his contract undertook to pay not less than the wage rate prescribed in the specifications, and where the Government, having specifically provided for an adjustment of the contract price in the event the minimum wage rate prescribed should be changed by a certain designated Government official, expressly stipulated that “the Government will not consider any claims for additional compensation made by the contractor because of payment" }, { "docid": "1889458", "title": "", "text": "payment oí a wage rate in excess thereof, and that all disputes in regard to the payment of wages in excess of those specified shall be adjusted by the contract- or, such as was written into the contracts involved in United States v. Beuttas, supra, and LeVeque et al. v. United States, supra. The contractor is simply told that the amounts to be paid his workmen shall be computed at wage rates “not less or more than” the rates stated in the specifications, and that the wages specified shall be the maximum wages to be paid, “subject, how- ever, to Executive Order No. 9250 and the General Orders and Regulations issued thereunder.” As stated in the LeVeque case such provisions as were there present (but not here) would indicate that the parties were not establishing a wage schedule, but rather a flooring for wages. They evidence an intent that the contractor is to assume the risk of all wage increases in excess of the minimum which subsequent conditions, not the fault of defendant, shall cause him to pay. It was not usual to find in Government contracts containing such provisions prior to the Stabilization Act of 1942, 56 Stat. 765, 50 U.S.C.A.Appendix, §§ 961-971, and the issuance of Executive Order No. 9250, a provision for change of the specified minimum rates and consequent adjustment of the contract price by the contracting officer or some other representative of the Government, such as was present in the contracts involved in LeVeque v. United States, supra; United States v. Beuttas, supra; and York Engineering Co. v. United States, supra. This was a recognition of the fact that, notwithstanding the contractor was to bear the burden of wage costs in excess of the specified minimum rate should he be compelled for reasons of his own to pay a higher rate in order to complete the performance of his contract, the Government for reasons of its own might desire to alter the minimum rate to be paid on the project, and would not expect the contractor to have to provide for such an uncertain possibility" }, { "docid": "2283671", "title": "", "text": "least the excess labor costs during the period, of the freeze. In any event, I would authorize a trial commissioner to take evidence on this phase of the case. Since the case is to be assigned to a trial commissioner, I agree that it may be sent generally. . Restatement of the Law of Contracts, sec. 315; Williston on Contracts, sec. 1293A; Anvil Mining Co. v. Humble, 153 U.S. 540, 14 S.Ct. 876, 38 L.Ed. 814; LeVeque v. United States, 96 Ct.Cl. 250; Beuttas v. United States, 60 F.Supp. 771, 101 Ct.Cl. 748 (rev. on other grounds 324 U.S. 768, 65 S.Ct. 1000, 89 L.Ed. 1354; Sunswick Corp. of Del. v. United States, 75 F.Supp. 221, 109 Ct.Cl. 772; York Engineering & Const. Co. v. United States, 62 F.Supp. 546, 103 Ct.Cl. 613, certiorari denied 327 U.S. 784, 66 S.Ct. 700, 90 L.Ed. 1011. LARAMORE, Judge (dissenting). I respectfully dissent for the following reasons: The majority opinion is based upon the premise that the defendant was under a duty to disclose to plaintiff that the Atomic Energy Commission was preparing to build a plant in the vicinity of the Clark Hill project and that a higher minimum wage rate was to be fixed for this job. The majority say that failure to disclose these facts gives rise to a cause of action based upon the implied condition in every contract that neither party will hinder the other in its performance of the contract or increase the cost of performance. I believe this to be an erroneous conception of the law. There can be little or no doubt that every contract carries with it an implied promise that one party will do nothing to prevent or hinder the other in its performance. Williston on Contracts, Rev. Ed., Vol. V, § 1293(A); Restatement of the Law of Contracts, § 315. This implied promise or condition applies equally to the Government as well as to private individuals, Kehm Corp. v. United States, 93 F.Supp. 620, 119 Ct.Cl. 454; Fuller Co. v. United States, 69 F.Supp. 409, 108 Ct.Cl. 70, and extends to acts-which" }, { "docid": "23597515", "title": "", "text": "Wage Board amounted to no more than permission to pay as much as 80 cents an hour; and that said ruling did not require the contractor to pay such higher rate. We concluded, however, that in view of certain provisions in the contract the contractor could not afford to ignore the demand made upon it that it pay the higher rate, and that the contractor having paid the increased wages as a result of this wrongful demand by defendant’s representaive in charge of the work, defendant should pay the increased cost resulting therefrom. We reached this result on the basis of the principle hereinabove discussed in connection with LeVeque et al. v. United States, supra, United States v. Beuttas, supra, and York Engineering Co. v. United States, supra; nothwithstanding in the Paretta case the contract requirement that the contractor pay not less than the wage rate stated in the specifications was not coupled with a provision for change of rate and adjustment of contract price by the contracting officer or any other .Government representative, and notwithstanding the declaration in the specifications that the specified rates were minimum rates only, and that the Government would not consider any claims for additional compensation made by the contractor because of payment by the contractor of any wage rate in excess of the applicable rate contained therein. These contractual provisions fairly expressed under certain circumstances the intention of the parties that should the contractor find himself driven to the necessity of paying wages in excess of the minimum in order to obtain workmen he would have to absorb this additional cost of performance without looking to the defendant for additional compensation. But we did not feel that the intention so indicated in the contract could be expanded to encompass a situation where the primary cause of the contractor’s paying the increased wages was the Government’s demand upon it that it do so. Defendant’s position is (1) that the action of the Wage Adjustment Board furnishes no basis for recovery against defendant because the directive order of said Board did not in fact cause plaintiff" }, { "docid": "23597531", "title": "", "text": "circumstances, defendant says, it was incumbent upon the contractor when making its bid to provide for the contingency that a wage increase might be ■ordered pursuant to the provisions of Executive Order 9250, since no undertaking on the part of defendant, to reimburse plaintiff for increased labor costs resulting therefrom may properly be implied. In order to reach this conclusion the language employed in both the contract and the specifications with reference to wages must be read so as to exclude every possible implication favorable to plaintiff. The contract documents do not provide merely that the wage rates to be paid by the contractor shall be not less than those set forth in the specifications, nor declare that the Government will not consider any claims for additional compensation occasioned by payment of a wage rate in excess thereof, and that all disputes in regard to the payment of wages in excess of those specified shall be adjusted by the contractor, such as was written into the contracts involved in United States v. Beuttas, supra, and LeVeque et al. v. United States, supra. The contractor is simply told that the amounts to be paid his workmen shall be computed at wage rates “not less or more than” the rates stated in the specifications, and that the wages specified shall be the maximum wages to be paid, “subject, however, to Executive Order No. 9250 and the General Orders and Regulations issued thereunder.” As stated in the LeVeque case such provisions as were there present (but not here) would indicate that the parties were not establishing a wage schedule, but rather a flooring for wages. They evidence an intent that the contractor is to assume the risk of all wage increases in excess of the minimum which subsequent conditions, not the fault of defendant, shall cause him to pay. It was not usual to find in Government contracts containing such provisions prior to the Stabilization Act of 1942 (56 Stat. 765; 50 U. S. C. App. 961-971) and the issuance of Executive Order No. 9250, a provision for change of the specified minimum" }, { "docid": "1889457", "title": "", "text": "increase in the specified wage scale would be made without an adjustment in the amount payable to it, particularly where, as here, the contract discloses the possibility of wage increases and makes no express provision for reimbursement of the contractor in such event. In such circumstances, defendant says, it was incumbent upon the contractor when making its bid to provide for the contingency that a wage increase might be ordered pursuant to the provisions of Executive Order 9250, since no undertaking on the part of defendant, to reimburse plaintiff for increased labor costs resulting therefrom may properly be implied. In order to reach this conclusion the language employed in both the contract and the specifications with reference to wages must be read so as to exclude every possible implication favorable to plaintiff. The contract documents do not provide merely that the wage rates to be paid by the contractor shall be not less than those set forth in the specifications, nor declare that the Government will not consider any claims for additional compensation occasioned by payment oí a wage rate in excess thereof, and that all disputes in regard to the payment of wages in excess of those specified shall be adjusted by the contract- or, such as was written into the contracts involved in United States v. Beuttas, supra, and LeVeque et al. v. United States, supra. The contractor is simply told that the amounts to be paid his workmen shall be computed at wage rates “not less or more than” the rates stated in the specifications, and that the wages specified shall be the maximum wages to be paid, “subject, how- ever, to Executive Order No. 9250 and the General Orders and Regulations issued thereunder.” As stated in the LeVeque case such provisions as were there present (but not here) would indicate that the parties were not establishing a wage schedule, but rather a flooring for wages. They evidence an intent that the contractor is to assume the risk of all wage increases in excess of the minimum which subsequent conditions, not the fault of defendant, shall cause" }, { "docid": "14922336", "title": "", "text": "of its other contentions, plaintiffs rely upon this court’s decision in the case of Sunswick Corp. v. United States, 75 F.Supp. 221, 222, 109 Ct.Cl. 772, certiorari denied 334 U.S. 827, 68 S.Ct. 1337, 92 L.Ed. 1755. The Sunswick case involved a lump sum construction contract in which the contractor was directed to pay all labor employed on the work at wage rates “not less or more than those stated in the specifications (subject to Executive Order Number 9250 and the General Orders and Regulations issued thereunder)”. General Order No. 13, issued pursuant to Executive Order 9250, provided that “the Wage Adjustment Board shall have power * * * (1) to hear and issue directive orders in labor dispute cases, and (2) to make final rulings on voluntary wage and salary adjustments requiring the approval of the National Wage Labor Board.” Prior- to making its bid, the Sunswick Corporation investigated conditions at the site of the work arid determined to its satisfaction that the wage rate for carpenters, among others, determined by the Secretary of Labor to be $1.25 per hour, was the prevailing rate for carpenters in the area. During the early part of the contract, plaintiff was able to hire carpenters at the $1.25 rate. During the third week of the contract, however, the local carpenters’ union informed plaintiff that the work being done by carpenters on the project was “waterfront work” which carried a rate of $1.42% per hour. The union demanded that this higher rate be paid to all caipenters employed on the Sunswick project. Plaintiff at all times disputed the union’s contention and after the United States Conciliation Service had failed to settle the controversy, the Secretary of Labor certified the matter as a dispute case to the National War Labor Board which in turn referred the dispute to the Wage Adjustment Board pursuant to General Order No. 13 mentioned above. After a full hearing before a hearing officer, with representatives of the plaintiff, the union, and the contracting officer participating, the Wage Adjustment Board adopted the recommendations of the hearing officer which were favorable" }, { "docid": "14922339", "title": "", "text": "party, imposed on the plaintiff a burden of performance which it was not intended by the contract should be borne by plaintiff without an adjustment of the contract price. The facts in the present case do not bring the case within the holding of the Sunswick case. There was no labor dispute and no directive order in the instant case. Plaintiffs were perfectly willing to pay the increased rates and voluntarily requested permission of the Wage Adjustment Board for the payment of such higher rates. The resulting actions of the Wage Adjustment Board on the various applications of plaintiffs did not direct or require plaintiffs to do anything. They merely authorized plaintiffs to pay the rates as requested, not retroactively, but beginning the payroll period following the date of the decisions. Plaintiffs also placed some reliance on the case of Paretta Contracting Co. v. United States, 109 Ct.Cl. 324. That case involved a wrongful order by the contracting officer directed to the contractor to pay. increased rates. In that case we.held that the activating cause of plaintiff’s paying the increased rate was the Government’s demand that it do so and we accordingly allowed recovery. If the contracting officer had not ordered plaintiff to pay the increased rate and plaintiff had merely followed the permissive ruling of the Wage Adjustment Board and voluntarily paid the rate, no ground for recovery would have existed. In the instant case plaintiffs were not ordered by the contracting agency to pay the increased rates authorized by the Wage Adjustment Board. It is true that plaintiffs may have been compelled by circumstances to pay the increased wages authorized by the Wage Adjustment Board but they were not so compelled by the Government in its capacity as a contractor, and there is no provision in plaintiffs’ contract which requires the Government to reimburse plaintiffs for increased wages voluntarily paid by plaintiffs. On the contrary, plaintiffs’ contract specifically provided in paragraph 2-2 of the specifications that no increase in the contract price would be allowed or authorized because of the payment of wage rates in excess of those" }, { "docid": "1889435", "title": "", "text": "a number of instances we have discussed the principle that it is an implied condition of every contract that neither party will hinder the other in his discharge of the obligations imposed upon him, nor increase his cost of performance. LeVeque et al. v. United States, 96 Ct.Cl. 250; Beuttas v. United States, 101 Ct.Cl. 748, reversed 324 U.S. 768, 65 S.Ct. 1000, 89 L.Ed. 566; York Engineering Co. v. United States, 62 F.Supp. 546, 103 Ct.Cl. 613, certiorari denied, 327 U.S. 784, 66 S.Ct. 700, 90 L.Ed. 1011; Clemmer Construction Co. v. United States, 71 F.Supp. 917, 108 Ct.Cl. 718; Paretta Contracting Co. v. United States, No. 46395, 109 Ct.Cl. -, decided October 6, 1947. Applicability of this principle in a given case depends upon not only the nature of the act which is alleged to have increased the burden of performance but as well upon the intention of the parties, with respect to such act, either expressed or implied in the contract. If the Government, having let a contract which fixed the minimum wages to be paid by the contractor on a certain project, thereafter sets a higher minimum wage level on a separate project at the same site, the court may conclude that in view of the respective undertakings of the parties, as disclosed in their contract, the Government by such conduct cannot be said to have “knowingly hindered” the contractor in his performance, or “culpably increased” his costs, notwithstanding there ultimately results from the Government’s conduct a condition wherein the contractor finds it necessary to increase wages in order to insure the timely completion of his work. This conclusion was reached in United States v. Beuttas, 324 U.S. 768, 65 S.Ct. 1000, 89 L.Ed. 566, and by this court in LeVeque et al. v. United States, supra, where, in each instance, the contractor by the express terms of his contract undertook to pay not less than the wage rate prescribed in the specifications, and where the Government, having specifically provided for an adjustment of the contract price in the event the minimum wage rate prescribed should" }, { "docid": "18195783", "title": "", "text": "any purpose. Plaintiffs also point to the fact that following the authorization by the Wage Adjustment Board for the payment of the increased wages on this contract, plaintiffs were reimbursed for the increased price of the labor on all .work covered by change orders issued subsequent to the Wage Adjustment Board decisions. In this connection it should be noted that the Wage Adjustment Board had authorized the increases in connection with this contract for the payroll periods following the various dates on which the increased rates were authorized. As a result of the Wage Adjustment Board decisions, these increased rates became the prevailing rates for the various trades involved in the Denver area. The change orders involving additional work were, in effect, new contracts let to plaintiffs and it was perfectly proper for the Government to estimate the cost of those contracts on the basis of the then prevailing wage rates in the area. Such action was in no sense a recognition by defendant that it was obligated to pay increased rates on the unmodified portion of the original contract. In support of its other contentions, plaintiffs rely upon this court’s decision in the case of Sunswick Corp. v. United States, 109 C. Cls. 712 (cert. den. 334 U. S. 827). The Sunswick case involved a lump sum construction contract in which the contractor was directed to pay all labor employed on the work at wage rates “not less or more than those stated in the specifications (subject to Executive Order Number 9250 and the General Orders and Regulations issued thereunder).” General Order No. 13, issued pursuant to Executive Order 9250, provided that “the Wage Adjustment Board shall have power * * * (1)' to hear and issue directive orders in labor dispute cases, and (2) to make final rulings on voluntary wage and salary adjustments requiring the approval of the National Wage Labor Board.” Prior to making its bid, the Sunswick Corporation investigated conditions at the site of the work and determined to its satisfaction that the wage rate for carpenters, among others, determined by the Secretary of Labor" }, { "docid": "13854256", "title": "", "text": "without qualification, plaintiffs assumed the risk of increased labor costs. On September 30,1944, plaintiffs appealed to the Secretary of War from the contracting officer’s decision, pursuant to Article 15 of the contract. On March 19, 1945, this appeal was denied on the grounds that the contract did not au thorize reimbursement for such increased costs; that the contract did not guarantee that laborers would work for the specified rate; that the Government’s action in authorizing the wage increase was merely an act in aid of the contractor; and that if plaintiffs were claiming that the 75-cent rate was a misrepresentation, the Board had no jurisdiction to give relief. Plaintiffs contend that they are entitled to recover the extra costs incurred by virtue of the above-mentioned wage adjustment under the holdings of this court in both the majority and concurring opinions in the case of Sunswick Corporation v. United States, 109 C. Cls. 772 (cert. den., 334 U. S. 827). While the facts alleged in plaintiffs’ petition and repeated in the briefs do appear to bring this case within the orbit of the Swnswick decision, the testimony and exhibits introduced by plaintiffs fail in material respects to establish such necessary facts. Both this case and the Swnswick case involved lump sum construction contracts in which the contractor was directed co pay all labor employed on the work at wage rates “not less or more than those stated in the specifications (subject to Executive Order Number 9250 and the General Orders and Regulations issued thereunder).” In both cases we found that General Order 13 issued pursuant to Executive Order 9250 provided that “The Wage Adjustment Board shall have power * * * (1) to hear and issue directive orders, in labor dispute cases, and (2) to make final rulings on voluntary wage and salary adjustments requiring the approval of the National War Labor Board.” In the Swnswick case plaintiff, prior to making its bid, investigated conditions at the site of the work including the labor situation and determined to its satisfaction that the rate for carpenters, among others, determined by the Secretary" }, { "docid": "23597532", "title": "", "text": "LeVeque et al. v. United States, supra. The contractor is simply told that the amounts to be paid his workmen shall be computed at wage rates “not less or more than” the rates stated in the specifications, and that the wages specified shall be the maximum wages to be paid, “subject, however, to Executive Order No. 9250 and the General Orders and Regulations issued thereunder.” As stated in the LeVeque case such provisions as were there present (but not here) would indicate that the parties were not establishing a wage schedule, but rather a flooring for wages. They evidence an intent that the contractor is to assume the risk of all wage increases in excess of the minimum which subsequent conditions, not the fault of defendant, shall cause him to pay. It was not usual to find in Government contracts containing such provisions prior to the Stabilization Act of 1942 (56 Stat. 765; 50 U. S. C. App. 961-971) and the issuance of Executive Order No. 9250, a provision for change of the specified minimum rates and conseqúent adjustment of the contract price by the contracting officer or some other representative of the Government, such as was present in the contracts involved in LeVeque v. United States, supra, United States v. Beuttas, supra, and York Engineering Co. v. United States, supra. This was a recognition of the fact that, notwithstanding the contractor was to bear the burden of wage costs in excess of the specified minimum rate should he be compelled for reasons of his own to pay a higher rate in order to complete the performance of his contract, the Government for reasons of its own might desire to alter the minimum rate to be paid on the project, and would not expect the contractor to have to provide for such an uncertain possibility in estimating his bid. Even in the absence of such a provision the Government could not in its capacity as a contracting party compel the contractor to pay wages in excess of the specified minimum rate without subjecting itself to liability for breach of the" } ]

[ { "docid": "18081814", "title": "", "text": "affect the accrual of the liability, since the liability was paid, and thereby discharged in the year it accrued. See also Chestnut Securities Co. v. United States, 104 C. Cls. 489. We think plaintiff, in computing its loss for 1946, is entitled to take into account the additional liability asserted by the Eevenue Agent and agreed to by it and paid by it. 2. Defendant says that plaintiff is not entitled to add to its operating loss for 1946 the amount of the additional excess profits taxes for 1942, 1943 and 1944, liability for which it acknowledged in 1946, and which it paid in 1946, because in its claims for refund, asking that its operating loss for 1946 be carried back to prior years, it did not refer to the additional taxes for 1942,1943 and 1944. This is an untenable position. The claim filed on January 6,1947 asking for a refund of income taxes for the calendar year 1944 read: The taxpayer claims a refund of 1944 normal tax and surtax as a result of a carry-back of 1946 net operating loss, totalling $1,115,000, or such other amount as is proper * * * The taxpayer did not undertake to indicate how he thought the 1946 net operating loss ought to be computed. He merely claimed a carry-back of the net operating loss in the amount of $1,115,000, “or such other amount as is proper.” This required the Commissioner of Internal Revenue to compute the “proper” amount of the 1946 operating loss. Since we have held above that the liability for the additional taxes for 1942,1948 and 1944 accrued in the year 1946, it was necessary for the Commissioner of Internal Revenue to take into account this additional liability in computing the net operating loss for 1946. It was not necessary for the taxpayer to specifically refer to additional taxes paid for 1942, 1943 and 1944. The claim filed on January 6, 1947 for the calendar year 1945 was to the same effect. Subsequently, the taxpayer filed other claims for refund of income and excess profits taxes for 1944 and" } ]

[ { "docid": "23668744", "title": "", "text": "which section 122(a), (b) and (d) (6), 26 U.S.C.A. § 122(a, b), (d) (6), say must be deducted from the income of the second preceding taxable year before application of the net operating loss carry-back. The Lewyt case says it must be computed on the income accrued within the taxable year. It is not necessarily the amount shown on the return, the court says, for items may not have been properly accrued. But the court said with equal clarity that events transpiring after the close of the taxable year were not to be taken into account. However, we must conclude that this means, “except those required by statute or valid regulation to be taken into account.” I.T. 3611 is a reasonable application of the statute, and we are, therefore, obliged to take it and the statute into account. We hold, therefore, that in computing the excess-profits tax to be deducted from 1944 income, in order to determine the amount of the net loss for 1946 to be applied against it, we must compute it on its income accrued within the year, as extended by section 3806 and I.T. 3611. After the deduction of these excess profits taxes, the net operating loss is to be applied against the remainder. If it exceeds the remainder, the excess is to be applied against 1945 net income. We think this is in accord with the holding of the Olympic Radio and Television, Inc., and Lewyt Corp., cases, supra. Plaintiff’s 1945 net income must be computed on this basis. 3. Defendant says that that part of the excess-profits taxes for 1944 which were later refunded should be taxed in the year refunded or refundable, on the theory that the taxpayer received a tax benefit from the deduction of them from its 1944 net income. However, it concedes that this refund is not taxable unless it reduced the net income of-the year in which they were deducted, :and that section 23(c), 26 U.S.C.A. § 23(c), provides that excess profits taxes are not deductible in computing net income. But, the defendant says, plaintiff received a tax benefit" }, { "docid": "5377477", "title": "", "text": "126 Ct.Cl. 681, certiorari denied 348 U.S. 815, 75 S.Ct. 26, 99 L.Ed. 643. It necessarily follows that plaintiff properly accrued the tax on profits later renegotiated. The defendant urges that in National Forge & Ordnance Co. v. United States, Ct.CL, 151 F.Supp. 937, 941, this court approved a departure from the annual accounting system with regard to renegotiated profits and that such a departure is applicable here. That case is clearly distinguishable on its facts and has no application whatsoever to the present situation. There the taxpayer was renegotiated before it filed its return, and under I.T. 3611 (1943 Cum. Bull. 978) was permitted to reduce its income by the amount of repayment determined to be due the Government in computing its taxable income for the year involved. This was true even though the actual repayment was not made until a subsequent year. I.T. 3611 has no application to the present plaintiff since it was not renegotiated until after it accrued the tax and filed its return. Its situation falls clearly within the rule laid down by the Supreme Court in Lewyt, and National Forge & Ordnance in no way creates a conflict. The defendant next contends that plaintiff is not entitled to recover in this court because “[t]he grounds for recovery of taxes for the year 1945 as set forth in the amended petition are clearly at variance with the grounds upon which the refund claims are based”. It premises this argument on the fact that the refund claim as filed with the Commissioner asked that refund be made for 1945 on the basis of a net operating loss carry-back and computed the section 122 (d) (6) deduction from 1944 net income by using the excess profits tax paid rather than accrued. We see no merit in this position. In National Forge & Ordnance v. United States, on defendant’s motion for reconsideration, this court stated its position with extreme clarity on the sufficiency of refund claims wherein it was said: “ * * * The rule of strictissimi juris is not applicable to claims for refund. All that" }, { "docid": "15677011", "title": "", "text": "1944 excess profits taxes as reflected in the taxpayer’s return for 1944, and which it claims accrued in 1944. Since under (a) the 1943 excess profits taxes paid in 1944 ($759,916.50) exceeded by $175,049.69 the unadjusted net income for 1944 ($584,866.81) and under (b) the 1944 excess profits taxes accrued for that year ($625,561.59) exceeded by $40,694.78 such net income for 1944 ($584,866.81), the taxpayer claims that the entire 1946 net operating loss ($164,326.38) constitutes a “carry-back” to 1945. We cannot agree. What we have already held as to the meaning of “paid or accrued” in § 122 (d) (6) in connection with the computation of the 1946 net operating loss equally applies to the § 122(d) (6) adjustment to 1944 net income, and disposes of the contention that for this purpose the taxpayer was entitled to deduct from such income the 1943 excess profits taxes paid in 1944. The other contention must also fail. The excess profits taxes ultimately found by the Commissioner to be due in respect of the year 1944 were $280,540.33, and not $625,561.59, as originally reported in the taxpayer’s 1944 return, and we think it was this figure rather than the uncorrected figure which represented the measure of the § 122(d) (6) adjustment to 1944 net income. Section 122(d) (6) allows the deduction of “the amount” of excess profits taxes “imposed” and (in the case of an accrual taxpayer) “accrued within the taxable year”. The tax which was “imposed” for 1944 was $280,540.33, and that in our opinion was “the amount” of the tax which “accrued” in 1944 for purposes of this adjustment. True, it has been held that when all the events necessary to determine the amount of a tax have occurred within a taxable year, the tax as reported in that year constitutes the tax “accrued” despite the occurrence of later events which change the amount of the tax ultimately found due. See United States v. Detroit-Moulding Corp., D.C.E.D.Mich.1944, 56 F.Supp. 754. But if we are to follow this view we should also take the income as originally reported in the 1944 return," }, { "docid": "3406943", "title": "", "text": "deduction exceeded the 1947 income, Budd contends that it is entitled to a refund of all its 1947 taxes., and so thought the district court. The Government, however, disputes this even with the embarrassing prece dent of Lewyt Corp. v. Commissioner, 1955, 349 U.S. 237, 75 S.Ct. 736, 99 L.Ed. 1029, which bears upon §§ 122(b) (1) and 122(d) (6). In that case the Government argued that the taxpayer, having recovered part of his money paid as 1944 excess profits taxes, due to the first application of the 1946 net operating loss, should not be able to utilize that amount as a reduction of the 1944 net income in computing the carry-back of that loss to 1945. The Court held otherwise. The opinion was narrowly based on the reasoning that § 122(d) (6) permitted the reduction from 1944 income of taxes accrued in 1944 and that figure could not be affected by events occurring in later years, even if they resulted in less taxes ultimately found to be due. As a result of this decision a larger portion of the loss remained unabsorbed and available for the second application as a carry-back in 1945. Finding itself defeated on this approach, the Government now attacks the problem from another direction. Here it concedes that the appellee is entitled under Lewyt to use the full amount of its 1944 excess profits tax in computations which eventually culminate in a reduction of its 1947 tax. However, the United States now contends that the taxpayer, having obtained this tax benefit from the 1944 tax, should be required to account for that part of the tax which it has gotten back from the Treasury as income either in 1946 when the refund accrued or in 1947 when it was actually paid. In either case should it succeed the Government would be able to achieve substantially the same goal that it failed to gain in the Supreme Court. This is most apparent considering the income as accrued in 1946, since the net operating loss would thereby be directly decreased. By the second alternative the loss would" }, { "docid": "22197827", "title": "", "text": "for two preceding taxable years and over into the two succeeding taxable years, thus taking for the limited purpose of § 122 a five-year period as the accounting unit. The part of § 122 of which the taxpayer seeks to take advantage is (b)(1) relating to the carry-back. By the express terms of § 122 (b)(1) the carry-back provisions are subject to the limitations contained in § 122 (d)(6), which provides in part, “There shall be allowed as a deduction the amount of tax imposed by Subchapter E of Chapter 2 paid or accrued within the taxable year . . . .” Subchapter E of Chapter 2 identifies the tax which may be used as a deduction as the Excess Profits Tax. But if it is to be used as a deduction, the tax must have been “paid or accrued” within the taxable year. The controversy here revolves around the meaning of “paid or accrued.” The years 1944 and 1945 were years of profit for the taxpayer. The years 1946 and 1947 were years of loss. The taxpayer kept its books and filed its returns on the accrual basis of accounting. Its 1945 excess profits tax therefore accrued in 1945,- though it was paid in 1946. Yet the argument which prevailed below is that the tax paid in 1946 on account of the liability for 1945 could be used under § 122 (d) (6) as a net operating loss for 1946. We take the other view and conclude that § 122 (d) (6) does not grant a taxpayer an option to take deductions on a basis that is inconsistent with the method of accounting which it employs. Section 41 states the general rule that net income shall be computed “in accordance with the method of accounting regularly employed in keeping the books” of the taxpayer. Section 43 provides that deductions and credits may be taken “for the taxable year in which ‘paid or accrued’ or ‘paid or incurred,’ dependent upon the method of accounting upon the basis of which the net income is computed, unless in order to clearly reflect" }, { "docid": "5377473", "title": "", "text": "and accrued and paid excess profits taxes in excess of $9,000,000. By renegotiation and other adjustments, these figures were reduced to $7,433,540.80 and $4,-528,628.22, respectively. The Commissioner in applying sections 122(b) (1) and (d) (6) subtracted the adjusted excess profits tax from the adjusted net income. This left a figure far in excess of the 1946 net operating loss leaving nothing to be used as a carry-back to 1945. However, in Lewyt Corp. v. Commissioner of Internal Revenue, 349 U.S. 237, 242, 75 S.Ct. 736, 740, 99 L.Ed. 1029, the Supreme Court held that the excess profits tax to be deducted from the second preceding taxable year’s net income was not the tax as finally determined, but the tax accrued “in accord with the normal accounting concepts relevant to the accrual basis.” Further, that “[e] vents and transactions of later years, irrelevant to a determination of income on the accrual basis, do not warrant alteration of the figure computed under § 122(d) (6) for the year in question.” Thus, if plaintiff properly accrued over $9,000,-000 in excess profits tax for 1944, it may deduct this amount from the finally determined net income for that year in arriving at the net operating loss carry-back available for use in 1945. Since the final 1944 net income is less than the accrued excess profits tax for that year there would be nothing to reduce the net operating loss carry-back and it would all be available for use in 1945. This naturally results in the use of the same deduction for both the first and second preceding taxable years and a double benefit to the taxpayer, since the 1946 net operating loss had already been ap plied as a carry-back deduction to 1944 income. Such a result was both recognized and approved by the Supreme Court in Lewyt. Defendant concedes, as it must, that the plaintiff presents a case very much like Lewyt, but contends that the accrual of excess profits tax on profits later renegotiated should not be considered as part of the tax accrued for the purposes of section 122(d) (6). Under" }, { "docid": "9695501", "title": "", "text": "JONES, Chief Judge. The plaintiff seeks to recover excess profits taxes paid for the fiscal year which ended September 30, 1944. The plaintiff says that in the fiscal year 1946 it suffered a net operating loss which it is entitled to carry back as a deduction against excess profits tax liability paid for the fiscal year 1944. The plaintiff paid an excess profits tax deficiency of $94,644.-59, and interest thereon of $45,499.41, in payments from March through July 1953. The taxpayer filed its claim for refund of these excess profits taxes on August 8,1953. In its petition to this court, plaintiff requested refund of both excess profits taxes and income taxes for the fiscal year 1944. The plaintiff has since conceded, however, that it did not file a timely claim for refund of 1944 income taxes. In this opinion therefore we address ourselves to the claim for refund of excess profits taxes paid for the fiscal year 1944. Prior to this suit, plaintiff’s tax liability for the fiscal year 1944 has twice been the subject of litigation. In Brad Foote Gear Works, Inc. v. United States, decided with Junior Toy Corp. v. United States, 1953, 116 F.Supp. 730, 126 Ct.Cl. 681, certiorari denied 1954, 348 U.S. 815, 75 S.Ct. 26, 99 L.Ed. 643, this court dismissed taxpayer’s petition for a refund of income and excess profits taxes for fiscal years 1944 and 1945. In Brad Foote Gear Works, Inc. v. Commissioner of Internal Revenue, Docket No. 39089, filed February 1952, the plaintiff petitioned the Tax Court of the United States for a redetermination of its excess profits taxes for the taxable years ended September 30, 1942, 1943, 1944, and 1945. That proceeding was concluded by a decision of the Tax Court which was entered on October 18, 1952. The Tax Court denied the petitioner excess profits tax relief for the fiscal years 1942-1945 and found that there was no overpayment in excess profits taxes for those years. The Tax Court determined deficiencies in excess profits taxes for the fiscal years 1943 and 1944. These deficiencies, as we have noted, were" }, { "docid": "5377468", "title": "", "text": "LARAMORE, Judge. Plaintiff, Continental Foundry & Machine Company, sues to recover claimed overpayments of income and excess profits taxes and also interest on a previously allowed excess profits tax overpayment. Plaintiff’s first amended petition contains three counts. The parties have stipulated that with respect to the second and third counts the plaintiff is entitled to recover $5,052.94 (finding 17) and $3,-242.95 (finding 18), and judgment will be entered to that effect. The remaining first count of plaintiff’s petition involves the question of whether or not plaintiff is entitled to a refund of income and excess profits taxes for the fiscal year ended November 30, 1945, by reason of a net operating loss deduction resulting from a carry-back of a net operating loss sustained in 1946. The determination of plaintiff’s right to recover hinges solely on the proper method of computing the available net operating loss carry-back as provided in section 122(b) (1) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 122(b) (l). The facts necessary to resolve this issue are as follows: Plaintiff, an accrual basis taxpayer, filed for the taxable year 1944 tax returns showing accrued net income of $13,759,511.29 and $9,921,819.84 excess profits tax accrued thereon. This latter amount was paid or credited in installments, the last payment having been made on November 13, 1945. On July 23, 1945, the plaintiff and the War Department entered into a renegotiation agreement on account of excessive profits realized by the plaintiff on war contracts with the Government for the year 1944. Under section 3806 of the Code, 26 U.S.C.A. § 3806, plaintiff was credited with the amount of taxes paid with respect to the 1944 excessive profits and the difference between the credit and the excessive profits was paid by the plaintiff to the Government. Of the total credit for taxes paid on the renegotiated profits, $4,527,288.72 represented excess profits tax paid for the year 1944. In 1952 plaintiff received a renegotiation rebate and pursuant to section 403(a) (4) (D) of the Renegotiation Act of 1942, as amended, 50 U.S.C.A.Appendix § 1191, there was charged against the rebate" }, { "docid": "22197826", "title": "", "text": "net operating loss. If that should have been done, the United States would now owe the taxpayer the refund claimed. The Court of Claims, by a divided vote, sustained the taxpayer’s contention and held that, in computing its net operating loss for 1946, the taxpayer was entitled to include the amount of excess profits tax paid in 1946 on account of its 1945 return. Judgment was accordingly entered for the taxpayer. ' 124 Ct. Cl. 33, 39, 108 F. Supp. 109, 110 F. Supp. 600. The case is here on a petition for a writ of certiorari which we granted (348 U. S. 808) because of a conflict between the decision below and Lewyt Corp. v. Commissioner, 215 F. 2d 518, decided by the Court of Appeals for the Second Circuit. Section 23 (s) of the Internal Revenue Code provides that, in computing net income, “the net operating loss deduction computed under section 122” shall be allowed as a deduction. Section 122, as applicable here, provides a complicated formula for carrying net operating losses back for two preceding taxable years and over into the two succeeding taxable years, thus taking for the limited purpose of § 122 a five-year period as the accounting unit. The part of § 122 of which the taxpayer seeks to take advantage is (b)(1) relating to the carry-back. By the express terms of § 122 (b)(1) the carry-back provisions are subject to the limitations contained in § 122 (d)(6), which provides in part, “There shall be allowed as a deduction the amount of tax imposed by Subchapter E of Chapter 2 paid or accrued within the taxable year . . . .” Subchapter E of Chapter 2 identifies the tax which may be used as a deduction as the Excess Profits Tax. But if it is to be used as a deduction, the tax must have been “paid or accrued” within the taxable year. The controversy here revolves around the meaning of “paid or accrued.” The years 1944 and 1945 were years of profit for the taxpayer. The years 1946 and 1947 were years of" }, { "docid": "20197122", "title": "", "text": "1946 net operating loss available for carryover to 1947 Section 23 (s) of the Code provides that in computing net income for 1947, plaintiff was entitled to a deduction from gross income of the “net operating loss deduction” for 1946 computed as provided in Section 122. Section 122(a) defines “net operating loss” as “the excess of the deductions allowed by this chapter over the gross income, with the exceptions, additions, and limitations provided in subsection (d).” Subsection 122(d) (6) permits the deduction of taxes “imposed by subchapter E of Chapter 2 [excess profits taxes] paid or accrued within the taxable year.” The Government contends that this deduction of accrued excess profits taxes, which Congress has provided for in Section 122(d) (6) and which is the basis of the 1946 loss carry-over resulting in this claim for refund of 1947 income tax, should result in the inclusion in plaintiff’s gross income for 1946 or 1947 of the amount of the excess profits tax refunded ($4,968,-544.42). Plaintiff became entitled to this amount ($4,968,544.42) as the result of the carry-back of this same 1946 loss to 1944 for purposes of recomputing the 1944 excess profits tax. The hearing judge, after examination of the record and the briefs in Lewyt Corp. v. Commissioner, 1955, 349 U.S. 237, 75 S.Ct. 736, 99 L.Ed. 1029, finds that the United States Supreme Court has rejected that contention by its decision in the Lewyt case for the reasons summarized under these two arguments of the Government : 1. Argument that plaintiff has not sustained its alleged burden of showing an overpayment of taxes which equitably belongs to it (pages 16-19 of Government’s brief of May 1956). An examination of the briefs and the opinion of the Supreme Court in the Lewyt ease, supra, has convinced the hearing judge that cases on this point cited by defendant, such as those referred to on pages 2 and 3 of the opinion filed August 29, 1956, in this matter, are inapplicable to this case in view of that decision. At pages 17 and 18 of the Government’s Supreme Court brief in" }, { "docid": "15676999", "title": "", "text": "the Tax Court’s order entered on the 1948 stipulation settling the 1943 excess profits tax liability binds the Government by way of collateral estoppel from now asserting that the 1947 remittance in respect of the 1943 tax was not a payment of the tax. We need not dwell on this contention. It seems clear (although the pleadings are not before us) that the settlement was concerned only with the fact of payment and not with its date. The item in the stipulation “Tax paid: September 29, 1947 (3rd NY)” does not persuade us that the question we now have before us was really at issue in the Tax Court. 2. 1947 Interest Payments For the same reasons the taxpayer’s contention as to the deductibility of the 1947 interest payments in respect of 1943, 1944 and 1945 taxes must also fail. 3. 1946 Net Operating Loss The taxpayer challenges the determinations of the Commissioner and the Tax Court as to the amount of the 1946 net operating loss. As determined below, the net operating loss for 1946 was $164,326.38. The taxpayer argues that it should have been increased by $861,118.04, being the amount of the excess profits taxes which it paid in that year in respect of 1945. This requires us to interpret the phrase “paid or accrued” in § 122(d)(6) permitting the deduction of excess profits taxes “paid or accrued within the taxable year” in the computation of the net operating loss under § 122(a). As already noted, it was unnecessary to reach this problem with respect to the 1947 net operating loss. The Tax Court held that “paid or accrued” meant that a cash taxpayer was entitled to deduct only excess profits taxes “paid,” and an accrual taxpayer only those “accrued,” within the taxable year, and that since Lewyt was an accrual taxpayer this sum of $861,118.04 could only be reckoned in Lewyt’s tax computations for 1945. We think the Tax Court was right. We start with the statute itself. Section 48(c), I.R.C., 26 U.S.C.A. § 48, provides that “When used in this chapter” (that is, Chapter 1 entitled" }, { "docid": "15676991", "title": "", "text": "two remittances as tax payments, viz.: $154,473.30 for 1943, $49,953.38 for 1944, and $108,437.36 for 1945. Of the first item, $12,855.17 represented income taxes (with which we are not concerned here) and the balance, aggregating $300,-008.87, represented excess profits taxes. The interest payments on these three items were charged to 1947 expense on the taxpayer’s books, viz.: $35,528.86 (1943), $8,492.07 (1944) and $11,928.11 (1945), or a total of $55,949.04. The taxpayer’s position that the $300,-008.87 of remittances in respect of excess profits taxes should have been allowed as a deduction in computing the net operating loss for 1947 (thereby increasing the “carry-back” to 1945) rests upon § 122(d)(6). As heretofore noted, this section gives a deduction for “the amount” of excess profits taxes “imposed” which were “paid or accrued within the taxable year”. Preliminarily it should be said that while there is an issue relating to the computation of the 1946 net operating loss (which we discuss later) as to the correctness of the Tax Court’s holding that in the case of an accrual taxpayer, as this taxpayer was, this section permits only the deduction of excess profits taxes which accrued within the taxable year, for the point now under discussion the taxpayer accepts the decision of the Tax Court in this respect as being correct. It can afford to do so since it is clear that none of these excess profits taxes had accrued prior to 1947 because they were in dispute — see Dixie Pine Products Co. v. Com’r, 1944, 320 U.S. 516, 64 S.Ct. 364, 88 L.Ed. 270 — and whether they accrued in 1947 depends upon whether they can be considered as “paid” in that year despite the fact that the dispute over them was not settled until at least 1948. See Chestnut Securities Co. v. United States, 1945, 62 F. Supp. 574, 104 Ct.Cl. 489, and Lehigh Valley Railroad v. Com’r, 1949, 12 T.C. 977. So the sole question with which we are now concerned is whether these 1947 remittances constituted taxes “paid” within the taxable year, that is 1947, within the meaning of §" }, { "docid": "5377474", "title": "", "text": "in excess profits tax for 1944, it may deduct this amount from the finally determined net income for that year in arriving at the net operating loss carry-back available for use in 1945. Since the final 1944 net income is less than the accrued excess profits tax for that year there would be nothing to reduce the net operating loss carry-back and it would all be available for use in 1945. This naturally results in the use of the same deduction for both the first and second preceding taxable years and a double benefit to the taxpayer, since the 1946 net operating loss had already been ap plied as a carry-back deduction to 1944 income. Such a result was both recognized and approved by the Supreme Court in Lewyt. Defendant concedes, as it must, that the plaintiff presents a case very much like Lewyt, but contends that the accrual of excess profits tax on profits later renegotiated should not be considered as part of the tax accrued for the purposes of section 122(d) (6). Under the Lewyt decision only the excess profits tax properly accrued could be considered in applying the section 122(d) (6) deduction against income of the second preceding taxable year. Was it therefore proper for the plaintiff, an accrual basis taxpayer, to accrue tax on income it was later to lose by reason of renegotiation? We think that it was and that the Supreme Court so held in deciding the Lewyt case. It is true, as defendant points out, that the Supreme Court in its majority opinion did not say in so many words that excess profits tax on profits later renegotiated were properly accruable, but clearly that is what they had to hold in deciding the case. As pointed out by Mr. Justice Frankfurter in his dissenting opinion, the taxpayer in that case was subjected to renegotiation which created a reduction in excess profits tax by reason of the section 3806 credit, and it was that credited tax which the majority held was properly accrued. This was not a \"Question [ ] which merely lurk[s] in" }, { "docid": "23668745", "title": "", "text": "its income accrued within the year, as extended by section 3806 and I.T. 3611. After the deduction of these excess profits taxes, the net operating loss is to be applied against the remainder. If it exceeds the remainder, the excess is to be applied against 1945 net income. We think this is in accord with the holding of the Olympic Radio and Television, Inc., and Lewyt Corp., cases, supra. Plaintiff’s 1945 net income must be computed on this basis. 3. Defendant says that that part of the excess-profits taxes for 1944 which were later refunded should be taxed in the year refunded or refundable, on the theory that the taxpayer received a tax benefit from the deduction of them from its 1944 net income. However, it concedes that this refund is not taxable unless it reduced the net income of-the year in which they were deducted, :and that section 23(c), 26 U.S.C.A. § 23(c), provides that excess profits taxes are not deductible in computing net income. But, the defendant says, plaintiff received a tax benefit for 1945 by the deduction of the 1944 excess profits tax from the income for that year, because, except for this deduction, all of the net loss would have been applied against 1944 income, leaving nothing to be applied against 1945 income. The difficulty with this is that Congress has directed that, only for the purpose of determining the part of the loss to be deducted from the second preceding taxable year, excess profits taxes for that year must be deducted, and it says nothing about including the amount deducted in the income of a subsequent year. In a sense, the excess profits tax was deducted from net income for 1944, but its deduction did not reduce plaintiff’s tax liability for that year, and this is necessary to constitute a tax benefit within section 22(b) (12), 26 U.S.C.A. § 22(b) (12). It was deducted only for the purpose of determining how much of the net operating loss was to be applied against 1944 income and how much against 1945 income. The intention of the Act," }, { "docid": "5377478", "title": "", "text": "laid down by the Supreme Court in Lewyt, and National Forge & Ordnance in no way creates a conflict. The defendant next contends that plaintiff is not entitled to recover in this court because “[t]he grounds for recovery of taxes for the year 1945 as set forth in the amended petition are clearly at variance with the grounds upon which the refund claims are based”. It premises this argument on the fact that the refund claim as filed with the Commissioner asked that refund be made for 1945 on the basis of a net operating loss carry-back and computed the section 122 (d) (6) deduction from 1944 net income by using the excess profits tax paid rather than accrued. We see no merit in this position. In National Forge & Ordnance v. United States, on defendant’s motion for reconsideration, this court stated its position with extreme clarity on the sufficiency of refund claims wherein it was said: “ * * * The rule of strictissimi juris is not applicable to claims for refund. All that is required of them, as a predicate for suit in this court is that they put the Commissioner of Internal Revenue on notice of the ground of the taxpayer’s claim that his taxes were erroneously computed. This does not have to be stated with any greater particularity than is necessary to draw the Commissioner’s attention to the claim he makes in his subsequent suit.” We think that by claiming a deduction in 1945 due to a carry-back of a net operating loss in 1946, plaintiff filed a claim for refund upon which suit for the proper determination of a net operating loss carry-back could be predicated. Because its claim for refund computed the section 122(d) (6) deduction on the basis of excess profits tax paid rather than accrued does not present a different fact situation which would require the Commissioner to examine other matters not germane to the dispute such as occurred in United States v. Andrews, 302 U.S. 517, 58 S.Ct. 315, 82 L.Ed. 398. Here the Commissioner’s attention was specifically directed to the" }, { "docid": "15676986", "title": "", "text": "the exceptions, additions, and limitations provided in subsection (d).” We are not concerned here with any of the provisions of subsection (d) except that contained in (d) (6) which permits the deduction of taxes “imposed by Subchapter E of Chapter 2 [excess profits taxes] paid or accrued within the taxable year,” subject to certain rules not presently relevant. If a taxpayer has a net operating loss for a given taxable year, § 122(b) (1) and (2) and § 122 (c) provide that it may be applied, in accordance with prescribed specifications, as a deduction in computing net income for the two preceding taxable years (called a “carry-back”) and for the two succeeding taxable years (called a “carry-over”), the starting point being with the second preceding taxable year, and any excess being carried successively, until exhausted, into the subsequent years ending with the taxable year secondly succeeding the year in which the net operating loss occurred. The taxpayer had net operating losses in each of the years 1946 and 1947, and the dispute we have before us relates primarily to (a) the proper computation of such losses for each of those years, and (b) the application of such losses to the years 1944 and 1945, in each of which the taxpayer had substantial taxable net income. We come first to the questions relating to the year 1945 in respect of which the Tax Court sustained the determination of the Commissioner that there was a deficiency in excess profits taxes of more than $460,000. The Commissioner determined that in 1947 the taxpayer had a net operating loss of $786,383.25, which he allowed as a “carry-back” deduction to 1945. The taxpayer claimed additional “carry-backs” to 1945 aggregating $1,381,402.33 by reason of (a) the remittance to the Collector in 1947 of $300,008.87 in respect of excess profits taxes for the years 1943, 1944 and 1945 which, it is asserted, should have been added to the net operating loss for 1947; (b) the remittance to the Collector in 1947 of $55,949.04 interest on the foregoing amount and on some $12,000 of additional income taxes for" }, { "docid": "3406942", "title": "", "text": "were subject to a claim for refund. In 1947 the taxpayer applied for and received in cash all its 1944 excess profits taxes not already received as a renegotiation credit or otherwise. In 1945 the taxpayer sustained a net operating loss, but it is agreed that we are not concerned with its application here. It is the second application of the 1946 loss, by way of carry-over deduction from 1947 income, which makes our case here. Section 122(b) (2) authorizes a carryover of that portion of the 1946 loss which exceeded “net income” for 1944. And in computing 1944 “net income” for this purpose, § 122(b) (2) allowed a taxpayer to take certain adjustments, including a deduction, under § 122(d) (6), of its 1944 excess profits taxes. As originally accrued these were something over eight million dollars. So computed, its net income under § 122(b) (2) was something more than one and one-half million. Therefore, taxpayer was entitled to carry over the difference between this figure and its 1946 net operating loss. Since this carry-over deduction exceeded the 1947 income, Budd contends that it is entitled to a refund of all its 1947 taxes., and so thought the district court. The Government, however, disputes this even with the embarrassing prece dent of Lewyt Corp. v. Commissioner, 1955, 349 U.S. 237, 75 S.Ct. 736, 99 L.Ed. 1029, which bears upon §§ 122(b) (1) and 122(d) (6). In that case the Government argued that the taxpayer, having recovered part of his money paid as 1944 excess profits taxes, due to the first application of the 1946 net operating loss, should not be able to utilize that amount as a reduction of the 1944 net income in computing the carry-back of that loss to 1945. The Court held otherwise. The opinion was narrowly based on the reasoning that § 122(d) (6) permitted the reduction from 1944 income of taxes accrued in 1944 and that figure could not be affected by events occurring in later years, even if they resulted in less taxes ultimately found to be due. As a result of this decision" }, { "docid": "5377472", "title": "", "text": "preceding taxable year [1944] computed (A) with the exceptions, additions, and limitations provided in subsection (d) (1), (2), (4), and (6), and (B) by determining the net operating loss deduction for such second preceding taxable year without regard to such net operating loss.” As applied to this case, section 122(b) (1) means that in order to determine if there is any available net operating loss for carry-back to 1945, the net income for 1944, as adjusted by subsections (d) (1), (2), (4), and (6), must be subtracted from the net operating loss. The excess, if any, is then applied as a deduction against 1945 income. The controversy here centers squarely on how much the 1944 income will be adjusted by the deduction allowed in subsection (d) (6) which provides: “There shall be allowed as a deduction the amount of tax imposed by Subchapter E [excess profits tax] of Chapter 2 paid or accrued within the taxable year, * * [Italics supplied.] As we have seen, plaintiff reported net income in excess of $13,000,000 for 1944 and accrued and paid excess profits taxes in excess of $9,000,000. By renegotiation and other adjustments, these figures were reduced to $7,433,540.80 and $4,-528,628.22, respectively. The Commissioner in applying sections 122(b) (1) and (d) (6) subtracted the adjusted excess profits tax from the adjusted net income. This left a figure far in excess of the 1946 net operating loss leaving nothing to be used as a carry-back to 1945. However, in Lewyt Corp. v. Commissioner of Internal Revenue, 349 U.S. 237, 242, 75 S.Ct. 736, 740, 99 L.Ed. 1029, the Supreme Court held that the excess profits tax to be deducted from the second preceding taxable year’s net income was not the tax as finally determined, but the tax accrued “in accord with the normal accounting concepts relevant to the accrual basis.” Further, that “[e] vents and transactions of later years, irrelevant to a determination of income on the accrual basis, do not warrant alteration of the figure computed under § 122(d) (6) for the year in question.” Thus, if plaintiff properly accrued over $9,000,-000" }, { "docid": "15677010", "title": "", "text": "(1) and § 122(c). In terms of the present case, the situation is this: The taxpayer’s 1944 income, as to which there is no dispute, was $584,866.81, without regard to any § 122 (d) (6) adjustment or the 1946 net operating loss deduction under § 23 (s). There was no net operating loss for 1944. The net operating loss for 1946, as determined by the Commissioner, was $164,326.38, and we have already disposed of the contention that it should have been increased by $861,118.04, the amount of the excess profits taxes paid by . the taxpayer in 1946 in respect of 1945. The taxpayer contends that in computing the amount of the 1946 net operating loss ($164,326.38) which is to be carried back to 1945, there should first be offset against 1944 net income ($584,866.81) either (a) the sum of $759,916.50, being the amount of the 1943 excess profits taxes reflected in the taxpayer’s return for that year and paid by it in 1944, or (b) the sum of $625,561.59, being the amount of the 1944 excess profits taxes as reflected in the taxpayer’s return for 1944, and which it claims accrued in 1944. Since under (a) the 1943 excess profits taxes paid in 1944 ($759,916.50) exceeded by $175,049.69 the unadjusted net income for 1944 ($584,866.81) and under (b) the 1944 excess profits taxes accrued for that year ($625,561.59) exceeded by $40,694.78 such net income for 1944 ($584,866.81), the taxpayer claims that the entire 1946 net operating loss ($164,326.38) constitutes a “carry-back” to 1945. We cannot agree. What we have already held as to the meaning of “paid or accrued” in § 122 (d) (6) in connection with the computation of the 1946 net operating loss equally applies to the § 122(d) (6) adjustment to 1944 net income, and disposes of the contention that for this purpose the taxpayer was entitled to deduct from such income the 1943 excess profits taxes paid in 1944. The other contention must also fail. The excess profits taxes ultimately found by the Commissioner to be due in respect of the year 1944 were $280,540.33," }, { "docid": "15676990", "title": "", "text": "in the taxpayer’s remittance of September 29, 1947. On September 29, 1947, the taxpayer also forwarded to the Collector a check for $178,810.92, stated in the letter of transmittal to represent additional taxes of $49,953.38 for 1944, with interest in the amount of $8,492.07, and of $108,-437.36 for 1945, with interest in the amount of $11,928.11. This remittance was predicated on a Revenue Agent’s examination of the taxpayer’s books for 1944 and 1945 (as well as 1946 and 1947), and a computation by the taxpayer’s auditor applying in respect of excess profits taxes the same supposed settlement formula as underlay the taxpayer’s remittance relating to 1943 excess profits taxes. Although no deficiency notice had been issued, and no settlement negotiations had been begun as to 1944 and 1945 taxes, the factors giving rise to the alleged excess profits tax deficiency for 1943 were deemed equally applicable to 1944 and 1945. The Collector also deposited this second remittance in his “Suspense Account.” The taxpayer charged on its books to earned surplus the principal amounts of these two remittances as tax payments, viz.: $154,473.30 for 1943, $49,953.38 for 1944, and $108,437.36 for 1945. Of the first item, $12,855.17 represented income taxes (with which we are not concerned here) and the balance, aggregating $300,-008.87, represented excess profits taxes. The interest payments on these three items were charged to 1947 expense on the taxpayer’s books, viz.: $35,528.86 (1943), $8,492.07 (1944) and $11,928.11 (1945), or a total of $55,949.04. The taxpayer’s position that the $300,-008.87 of remittances in respect of excess profits taxes should have been allowed as a deduction in computing the net operating loss for 1947 (thereby increasing the “carry-back” to 1945) rests upon § 122(d)(6). As heretofore noted, this section gives a deduction for “the amount” of excess profits taxes “imposed” which were “paid or accrued within the taxable year”. Preliminarily it should be said that while there is an issue relating to the computation of the 1946 net operating loss (which we discuss later) as to the correctness of the Tax Court’s holding that in the case of an accrual taxpayer," } ]

[ { "docid": "23201765", "title": "", "text": "of action.” Id., 1997 WL 760512, at *5-6. Then, having dismissed Koppel and Greenberg’s only federal claims, the District Court dismissed the pendant state claims for lack of subject matter jurisdiction and all other outstanding motions as moot. See id. at 90,223-24, 1997 WL 760512, at *6. Koppel and Greenberg now appeal. DISCUSSION This Court reviews a grant of a motion to dismiss de novo, “taking as true all allegations in the complaint, and drawing all reasonable inferences therefrom in the investors’ favor.” Lanza v. Merrill Lynch & Co. (In re Merrill Lynch Ltd. Partnerships Litig.), 154 F.3d 56, 58 (2d Cir.1998) (per curiam) (citing Olkey v. Hyperion 1999 Term Trust, Inc., 98 F.3d 2, 4-5 (2d Cir.1996), cert. denied, 520 U.S. 1264, 117 S.Ct. 2433, 138 L.Ed.2d 194 (1997)). We must “vacate the dismissal ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief.’” SEC v. U.S. Envtl., Inc., 155 F.3d 107, 110 (2d Cir.1998) (quoting Easton v. Sundram, 947 F.2d 1011, 1014-1015 (2d Cir.1991) (quotation marks omitted and alterations made in U.S. Envtl.), cert. denied, 504 U.S. 911, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992)). I. Rule 14a-9 and Material Misstatements or Omissions in a Proxy Statement We first address whether the complaints state a valid cause of action for a material misstatement or omission in a proxy statement in violation of § 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder. As discussed below, the District Court did correctly dismiss many of the 14a-9 claims. Nonetheless, it erred in dismissing the complaints in their entirety. Specifically, Koppel and Greenberg both plead a valid claim under Rule 14a-9 in alleging that the Solicitation’s use of the Consensus Report was misleading. Accordingly, we reverse' the District Court’s decision to the contrary. Section 14(a) of the Exchange Act provides that “[i]t shall be unlawful for any person ... in contravention of such rules and regulations as the [SEC] may prescribe ... to solicit ... any proxy or consent or authorization in respect of any" } ]

[ { "docid": "4424742", "title": "", "text": "plaintiff fails to (1) state a claim of discrimination in the terms and conditions of her employment under pursuant to Title VII, Section 1981, or the NYHRL; (2) state a claim of retaliation pursuant to Title VII, Section 1981, or the NYHRL; and (3) state a claim for individual liability under the NYHRL. In addition, the defendants move to dismiss the action for lack of personal jurisdiction as to Buescher because the plaintiff failed to name him in the SDHR charge, and as to BVP because it is not an employer within the definition set forth under Title VII and NYHRL. II. DISCUSSION A. Standard of Review In reviewing a motion to dismiss for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), the Court should dismiss the complaint only if it appears beyond doubt that the facts alleged in the complaint would not entitle the plaintiff to relief. King v. Simpson, 189 F.3d 284, 287 (2nd Cir.1999); see also, Bernheim v. Litt, 79 F.3d 318, 321 (2nd Cir.1996). The Court must accept all of the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Koppel v. 4987 Corp., 167 F.3d 125, 138 (2nd Cir.1999); Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2nd Cir.1997). In addition, the issue before the Court is not whether the plaintiffs claim will ultimately prevail, but whether the plaintiff is entitled to offer evidence in support of the claims. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2nd Cir.1995). B. Title VII Title VII prohibits discrimination based on race, color, religion, sex, or national origin by an “employer.” 42 U.S.C. § 2000e-2. An “employer” is defined as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.” 42 U.S.C. § 2000e(b). The defendants contend that the Court lacks personal jurisdiction over BVP on the" }, { "docid": "16147957", "title": "", "text": "— U.S.-, 127 S.Ct. 1955, 1968, 167 L.Ed.2d 929, 2007 WL 1461066, at *10, the issue to be determined remains merely whether the plaintiff should be entitled to offer evidence to support his claims, and not whether he will ultimately be successful in this lawsuit. See King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999) (quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995)). 2. The Plaintiffs Pro Se Status The Court is mindful that the Plaintiff is proceeding pro se and that his submissions should be read liberally and held “ ‘to less stringent standards than formal pleadings drafted by lawyers.’ ” See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). The Court should interpret the plaintiffs papers “to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). Nevertheless, the Court is also aware that pro se status “does not exempt a party from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983) (internal quotations and citation omitted). 3. Section 1983 Section 1983 provides that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, 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. To state a claim under Section 1983, the plaintiff must allege conduct attributable to a person acting under state law that deprived him of a right secured by the Constitution of the United States. Feingold v. New York, 366 F.3d 138, 159 (2d Cir.2004) (quoting West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)); Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir.1993). In this case, the" }, { "docid": "23000292", "title": "", "text": "parole stating that King was “PAROLED nunc pro tunc on July 14, 1996.” King alleges that “[n]o explanation has been given plaintiff why he was given a Certificate of Parole stating that plaintiff was paroled on July 14, 1996 but only released on October 16, 1996, ‘nunc pro tunc.’ ” Compl. ¶ 16. On March 19, 1997, defendant moved to dismiss King’s federal lawsuit on four grounds: absolute immunity, qualified immunity, King’s failure to allege Simpson’s personal involvement in the alleged violation of rights, and plaintiffs failure to properly serve Simpson. By a memorandum and order dated October 30, 1998, Judge Amon granted defendant’s motion on absolute immunity grounds and dismissed King’s complaint pursuant to Fed. R.Civ.P. 12(b)(6). Specifically, Judge Amon held that “[b]ecause the law in this circuit is that decisions made by parole board officials concerning the grant, denial, or revocation of parole are considered quasi-judicial, defendant here enjoys absolute immunity from this suit for money damages.” King now appeals. DISCUSSION I. Standard of review Appellate review of a grant of dismissal for failure to state a claim is de novo. See Bemheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). The court may not dismiss a complaint under Fed.R.Civ.P. 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. (internal quotation marks and citation omitted). In the course of our review, we accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of plaintiff. See id. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (internal quotation marks omitted). With this generous standard in mind, we examine King’s complaint. II. Immunity In its motion to dismiss King’s complaint, the government argued in the alternative that Simpson was entitled to either absolute or qualified immunity from suit. Judge Amon concluded that absolute immunity applied. However, at this stage" }, { "docid": "4500934", "title": "", "text": "meet those standards. DISCUSSION The court may not dismiss a complaint under Fed.R.Civ.P. 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. King v. Simpson, 189 F.3d 284, 286 (2d Cir.1999); Bernheim v. Lift, 79 F.3d 318, 321 (2d Cir.1996). The court must accept as true all factual allegations in the complaint as true and draw all reasonable inferences in favor of plaintiff. Id.; Jaghory v. New York State Dept. of Educ., 131 F.3d 326, 329 (2d Cir.1997). The issue to consider is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995). The court must confine its consideration “to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir.1999). 1. As to the first cause of action under Section 11 of the Securities Act Section 11 of the Securities Act of 1933,15 U.S.C. § 77k, states: In case any part of the registration statement ... 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 not misleading, any person acquiring such security [may] sue (1) every person who signed such registration statement [or] (2) every person who was a director of ... the issuer at the time of the filing.... Section 11 “places a relatively minimal burden on a plaintiff,” requiring simply that the plaintiff allege that he purchased the security and that the registration statement contains false or misleading statements concerning a material fact. Herman & MacLean v. Huddleston, 459 U.S. 375, 381-82,103 S.Ct. 683, 74 L.Ed.2d 548 (1983); Feiner v. SS & C Technologies," }, { "docid": "2419191", "title": "", "text": "motion to lift the automatic stay of discovery. A. The Motions to Dismiss the Second Amended Complaint On a motion to dismiss for failure to state a claim, the Court should dismiss the complaint pursuant to Rule 12(b)(6) if it appears beyond doubt that the plaintiff can prove no set of facts in support of his complaint which would entitle him to relief. See King v. Simpson, 189 F.3d 284, 286 (2d Cir.1999); Bernheim v. Lift, 79 F.3d 318, 321 (2d Cir.1996); I. Meyer Pincus & Assocs. v. Oppenheimer & Co., 936 F.2d 759, 762 (2d Cir.1991) (holding that dismissal is inappropriate unless “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations”). The issue to consider is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. See Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995). Indeed, it is not the Court’s function to weigh the evidence that might be presented at trial; instead, the Court must merely determine whether the complaint itself is legally sufficient. See Villager Pond, 56 F.3d at 378. The Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Koppel v. 4987 Corp., 167 F.3d 125, 127 (2d Cir.1999); Thomas v. City of New York, 143 F.3d 31, 36 (2d Cir.1998). In making this determination, the Court must confine its consideration “to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999); see Rothman v. Gregor, 220 F.3d 81, 89 (2d Cir.2000) (holding that for the purpose of deciding a motion to dismiss, the complaint includes “any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference”); Hayden v. County of Nassau," }, { "docid": "7094541", "title": "", "text": "IBM had never authorized Cendant to write the benefits letter dated December 21, 2001. IBM did not provide any written denial, further explanation, or instructions on how to appeal the denial. Claiming that any administrative review of the unwritten decision would be futile, Engler commenced this law suit. II. DISCUSSION A. THE MOTION TO DISMISS STANDARD On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court should dismiss the complaint 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); Curto v. Edmundson, 392 F.3d 502, 503 (2d Cir.2004); King v. Simpson, 189 F.3d 284, 286 (2d Cir.1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). The Court must accept all well-pled factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Koppel v. 4987 Corp., 167 F.3d 125, 127 (2d Cir.1999); Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997). The issue is not whether the plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support the claims. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995). In deciding a motion to dismiss under Rule 12(b)(6), the Court must confine its consideration “to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir.1999). B. THE ERISA CLAIMS 1. Generally Congress enacted ERISA as a remedial statute to protect the interests of the beneficiaries of private retirement plans by reducing the risk of the loss of pension benefits. Geller v. County Line Auto Sales, Inc., 86 F.3d 18," }, { "docid": "16147956", "title": "", "text": "litigation. Also, the plaintiff “reserve[s] his right to seek monetary relief for other damages or sufferings at a later date.” II. DISCUSSION A. Legal Standards 1. Rule 12(b)(6) In deciding a motion to dismiss under Rule 12(b)(6), the Court must “accept all of the plaintiffs factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff.” Starr v. Georgeson S’holder, Inc., 412 F.3d 103, 109 (2d Cir.2005); Desiderio v. Nat’l Ass’n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir.1999). A complaint should only be dismissed if it does not contain enough allegations of fact to state a claim to relief that is “plausible on its face.” Bell Atlantic Corp. v. Twombly, — U.S.-, 127 S.Ct. 1955, 1968, 1973, 167 L.Ed.2d 929, 2007 WL 1461066, at *10, 13 (2007). Although the Supreme Court recently abrogated Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), thus abandoning the familiar “no set of facts” language used in that opinion, Bell Atlantic, — U.S.-, 127 S.Ct. 1955, 1968, 167 L.Ed.2d 929, 2007 WL 1461066, at *10, the issue to be determined remains merely whether the plaintiff should be entitled to offer evidence to support his claims, and not whether he will ultimately be successful in this lawsuit. See King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999) (quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995)). 2. The Plaintiffs Pro Se Status The Court is mindful that the Plaintiff is proceeding pro se and that his submissions should be read liberally and held “ ‘to less stringent standards than formal pleadings drafted by lawyers.’ ” See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). The Court should interpret the plaintiffs papers “to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). Nevertheless, the" }, { "docid": "21622082", "title": "", "text": "in support of his complaint which would entitle him to relief. King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). The court must accept as true all of the factual allegations set out in the complaint, draw inferences from those allegations in the light most favorable to the plaintiff, and construe the complaint liberally. See Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir.2000) (citing Desiderio v. National Ass’n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir.1999)). In its analysis under Rule 12(b)(6), the court “must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Tarskis, 211 F.3d at 39 (citing Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991)). The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995). 2. Rule 9(b) Rule 9(b) sets forth additional pleading requirements with respect to allegations of fraud. The reason for these requirements are three-fold: (1) to provide the defendant with fair notice of the claims against her; (2) to protect the defendant from harm to her reputation or goodwill as a result of unfounded allegations of fraud; and (3) to reduce the number of strike suits. See DiVittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247 (2d Cir.1987). “[CJonclusory allegations that defendant’s conduct was fraudulent or deceptive are not enough.” Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 114 (2d Cir.1982). To satisfy the pleading requirements of Rule 9(b), the plaintiff must plead the circumstances of the fraud with particularity and that the defendant acted with fraudulent intent. Fed.R.Civ.P. 9(b). a. Pleading the Circumstances of Fraud Rule 9(b) requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Fed. R.Civ.P. 9(b). In order to satisfy this" }, { "docid": "10064698", "title": "", "text": "the letter’s failure to inform Greif that she can preserve certain rights only by disputing the debt in writing does not violate the act because by not requiring a writing, the letter allows the plaintiff to obtain verification of the debt as well as the identity and address of the creditor through more consumer-friendly means than the writing required by the FDCPA. WEMED also contends that the fact that the letter does not specify the exact amount of attorneys’ fees that are part of the debt does not violate the act because the fees are authorized, and their amount was subject to agreement or judicial approval. Lastly, WEMED asserts that it is clear from the letter that Mr. DeGaetano is not an attorney. II. DISCUSSION On a motion to dismiss for failure to state a claim, the Court should dismiss the complaint pursuant to Rule 12(b)(6) if it appears beyond doubt that the plaintiff can prove no set of facts in support of his complaint which would entitle him to relief. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002); King v. Simpson, 189 F.3d 284, 286 (2d Cir.1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). As noted above, the Court must confine its consideration “to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir.1999). The Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Koppel v. 4987 Corp., 167 F.3d 125, 127 (2d Cir.1999); Jaghory v. New York State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir.1997). The issue to consider is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. See Villager Pond, Inc. v. Town of" }, { "docid": "2127082", "title": "", "text": "defects identified in GMA’s motion. See Fed.R.Civ.P. 15(a); Rose v. Associated Univs., Inc., No. 00 Civ. 0460, 2000 WL 1457115, at *3 (S.D.N.Y. Sep. 28, 2000) (motion to dismiss is not a responsive pleading). Unsatisfied, GMA moved to dismiss the amended counterclaims on the same grounds it previously raised. DISCUSSION A. Motion to Dismiss Standard In reviewing a motion to dismiss, I must accept the factual allegations set forth in the complaint (or, as here, a counterclaim) as true, and draw all reasonable inferences in favor of the plaintiff. See Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). A complaint may not be dismissed under Fed.R.Civ.P. 12(b)(6) unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir.1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In other words, the issue before the Court on a motion to dismiss “is not whether ... plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (citation omitted), cert. denied, 519 U.S. 808, 117 S.Ct. 50, 136 L.Ed.2d 14 (1996). B. Compulsory v. Permissive Counterclaims Pursuant to Fed.R.Civ.P. 13(a), “[a] pleading shall state as a counterclaim any claim [that] ... arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.” A counterclaim is compulsory when a “logical relationship exists between the claim and the counterclaim and ... the essential facts of the claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit.” Adam v. Jacobs, 950 F.2d 89, 92 (2d Cir.1991) (internal quotations omitted); see AT & T Corp. v. American Cash Card Corp., 184 F.R.D. 515, 519 (S.D.N.Y.1999) (quoting same). A compulsory counterclaim" }, { "docid": "7403442", "title": "", "text": "A. Standards for Determination of Motions to Dismiss The standards for a motion to dismiss are well established. In reviewing a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), made applicable to an adversary proceeding in a bankruptcy proceeding under Fed. R. Bankr.P. 7012(b), a court accepts as true the well-pleaded factual allegations made by the plaintiff/claimant, and the court “must draw all reasonable inferences in favor of the plaintiff.” Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996) (citing to Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 513 U.S. 836, 115 S.Ct. 117, 130 L.Ed.2d 63 (1994)); see Villager Pond Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (“[I]n passing on a motion to dismiss, ... the allegations of the complaint should be construed favorably to the pleader” (quoting Scheuer v. Rhodes, 416 U.S. 232, 235-236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974))); A.R. Baron, 280 B.R. at 799. It has long been the law that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); accord Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 44 (2d Cir.1997) (quoting Conley); In re Granite Partners, L.P., 210 B.R. 508, 514 (Bankr.S.D.N.Y.1997) (Bernstein, C.J.) (“Granite Partners II”) (denying motion to dismiss complaint, noting dismissal would be proper “only when the plaintiff would not be entitled to any type of relief, even if it prevailed on the merits of its factual allegations”). As the Supreme Court held in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974): When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it" }, { "docid": "10828815", "title": "", "text": "either seek reconsideration or immediately appeal from the adverse decision. Nevertheless, the Tawil Plaintiffs waited more than seven months after the Order of Consolidation was entered and more than four months after the Consolidated Amended Complaint was filed to seek relief from the Court. E.D.N.Y. Local Rule 6.3 requires that a motion for reconsideration or re-argument of a court order determining a motion be served within ten days after the entry of the court’s order. Having failed to timely seek re-argument or appeal of the Order of Consolidation, the Tawil Plaintiffs motion to vacate the Order of Consolidation is denied. B. The Motion to Dismiss 1. The Standard of Review In a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court may only dismiss the complaint if it appears beyond doubt that the plaintiffs can prove no set of facts in support of his complaint which would entitle him to relief. See King v. Simpson, 189 F.3d 284, 286 (2d Cir.1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996); I. Meyer Pincus & Assocs. v. Oppenheimer & Co., 936 F.2d 759, 762 (2d Cir.1991) (holding that dismissal is inappropriate unless “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations”). The issue to consider is not whether the plaintiffs will ultimately prevail, but whether they are entitled to offer evidence to support their claims. See Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995). Indeed, it is not the court’s function to weigh the evidence that might be presented at trial, rather the court must merely determine whether the complaint itself is legally sufficient. See Villager Pond, 56 F.3d at 378. The Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Lentell v. Merrill Lynch & Co., Inc., 396 F.3d 161, 165 (2d Cir.2005); De-Muria v. Hawkes, 328 F.3d 704, 706 (2d Cir.2003); Koppel v. 1987 Corp., 167 F.3d 125, 127 (2d Cir.1999); Thomas v. City" }, { "docid": "21622273", "title": "", "text": "violations of the FCRA is improper because doing so would force the plaintiff to “waive[ ] her rights under the FCRA and all protections afforded to her by law.” Plfs. Mem. in Opp. at 9. This contention is also misplaced. It is well-settled that statutory rights may be arbitrated “so long as the prospective litigant effectively may vindicate his or her statutory cause of action in the arbitral forum.” Green Tree Fin. Corp-Alabama v. Randolph, 531 U.S. at 90, 121 S.Ct. 513 (internal quotations omitted). The plaintiff has not explained why her claims cannot be advanced through arbitration. Finally, the Court notes that the remaining arguments, namely that “the defendant concedes the inapplicability of the arbitra*tion clause” and that the “defendants’ motion qualifies as a motion for summary judgment and fails to meet the standards for such a decision” , are patently withoút merit. Accordingly, the motion by Verizon Wireless to compel arbitration of the first and second causes of action is granted. B. As to the Motion to Dismiss 1. Applicable Law In. reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court should dismiss the complaint-only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his complaint which would entitle him to relief. King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). The court must accept as true all of the factual- allegations set out in the complaint, draw inferences from those allegations in the light most favorable to the plaintiff, and construe the complaint liberally. See Tarshis n Riese Org., 211 F.3d 30, 35 (2d Cir.2000) (citing Desiderio v. National Ass’n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir.1999)). The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1996). 2. As to Parent Liability of Verizon Communications and Vodafone Under New York law, “a parent company" }, { "docid": "10064699", "title": "", "text": "N.A., 534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002); King v. Simpson, 189 F.3d 284, 286 (2d Cir.1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). As noted above, the Court must confine its consideration “to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir.1999). The Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Koppel v. 4987 Corp., 167 F.3d 125, 127 (2d Cir.1999); Jaghory v. New York State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir.1997). The issue to consider is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. See Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995). Indeed, it is not the Court’s function to weigh the evidence that might be presented at trial; instead, the Court must merely determine whether the complaint itself is legally sufficient. See Villager Pond, at 378. The purpose of the FDCPA is to protect consumers from abusive, harassing, threatening, misleading and otherwise unscrupulous debt collection practices. See Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir.1996). To this end, the Act requires that “debt collectors advise the consumers whose debts they seek to collect of specified rights.” DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir.2001). When a debt collector solicits payment from a consumer, it must, within five days of an initial 'communication, provide the consumer with a written validation notice which must include the following information: (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the" }, { "docid": "160938", "title": "", "text": "the first paragraph of their application for a prejudgment remedy and order pendente lite that § 422 is the operative statute. [Docs. # 30-31] § 278 is merely cited for reference, as the various parts of that statute define Connecticut’s standards and procedures for obtaining a prejudgment remedy. See Insurity, Inc. v. Mut. Group, Ltd., 260 F.Supp.2d 486, 490 (D.Conn.2003) (§ 278 “may be extremely helpful to a court reasoning by analogy to [§ 422], much the same way a federal court develops federal common law by looking to state law sources that are thoughtful and persuasive, though not binding”); see also Fed.R.Civ.P. 64 (“remedies ... for the purpose of securing satisfaction of the judgment ... are available under the circumstances and in the manner provided by the law of the state in which the district court is held”). Accordingly, Schiavone’s motion to dismiss for lack of subject matter jurisdiction under § 278 is DENIED. IV. 12(b)(6) “In reviewing a Rule 12(b)(6) motion, this Court must accept the factual allegations of the complaint as true and must draw all reasonable inferences in favor of the plaintiff.” Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). “A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (internal quotation omitted). The pleading shall not be dismissed merely because recovery seems remote or unlikely. Bernheim, 79 F.3d at 321. In deciding a motion to dismiss, the court may consider “only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken.” Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir.1993). A. Necessity of" }, { "docid": "21622274", "title": "", "text": "a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court should dismiss the complaint-only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his complaint which would entitle him to relief. King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). The court must accept as true all of the factual- allegations set out in the complaint, draw inferences from those allegations in the light most favorable to the plaintiff, and construe the complaint liberally. See Tarshis n Riese Org., 211 F.3d 30, 35 (2d Cir.2000) (citing Desiderio v. National Ass’n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir.1999)). The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1996). 2. As to Parent Liability of Verizon Communications and Vodafone Under New York law, “a parent company is not automatically liable for the acts of its wholly-owned subsidiary.” Manchester Equipment Co., Inc. v. Amer. Way and Moving Co., Inc., 60 F.Supp.2d 3, 6 (E.D.N.Y.1999). The plaintiff asserts two theories as to how Verizon Communications and Vodafone are liable as parent companies. The first theory, apparently arising out of agency law, is that the parent companies “play the part of the ‘master’ with the role of the ‘servant/agent’ being played by Verizon Wireless.” Compl. ¶ 120. However, the plaintiff provides no factual support for this proposition other than his contention that Verizon Wireless is completely owned by Verizon Communications and Vodafone. However, “liability is never imposed solely upon the fact that a parent owns a controlling interest in the shares of a subsidiary.” Manchester Equipment Co., Inc., 60 F.Supp.2d at 6 (citation omitted). The second theory of liability is that because of their “total, complete ownership [of Verizon Wireless],” Compl. ¶ 146, Verizon Communications and Voda-fone are liable for any wrongful acts of its subsidiary. In order to pierce the corporate veil and" }, { "docid": "1749443", "title": "", "text": "Order served to extend the original order of protection that was the subject of the arrest in question. See Davis v. Cotov, 214 F.Supp.2d 310, 315 (E.D.N.Y.2002) (This Court took judicial notice of the fact that the plaintiff pled guilty to a parole violation when the defendants attached a copy of the Administrative Decision Notice from the State of New York, Executive Department, Board of Parole to their motion papers). Reading the pro se amended complaint liberally, it appears that the Plaintiff asserts the following Section 1983 and New York State law claims against the County Defendants: (1) false arrest; (2) false imprisonment; and (3) malicious prosecution. The Plaintiff also asserts New York State law claims for assault and battery. II. DISCUSSION A. Standard of Review In deciding a motion to dismiss under Rule 12(b)(6), the Court must liberally construe the claims, accepting all the factual allegations as true and drawing all reasonable inferences in favor of the plaintiff. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). “The issue to consider is not whether the plaintiff will ultimately prevail but whether [he] is entitled to offer evidence to support the claims.” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (citation omitted). Dismissal is proper only if the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See King v. Simpson, 189 F.3d 284, 286 (2d Cir.1999). In making this determination, the Court is mindful that the plaintiffs pro se status means that his submissions should be held “ ‘to less stringent standards than formal pleadings drafted by lawyers.’ ” Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). The Court recognizes that it must make reasonable allowances so that a pro se plaintiff does not forfeit rights by virtue of his lack of legal training. See Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983). Indeed, courts should “read the pleadings of a" }, { "docid": "12765227", "title": "", "text": "dismissed because the Plaintiffs have no third-party relationship with HUD other than through the CDA. Finally, the CDA Defendants’ brief confusingly includes an argument captioned “the fifth claim for relief must be dismissed,” but refers repeatedly in the body of the argument to “the sixth claim for relief’ as failing to state a recognizable claim under Federal or State law, then refers in the conclusion of the brief to the fifth cause of action. DISCUSSION The court may not dismiss a complaint under Fed.R.Civ.P. 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle-him to relief. King v. Simpson, 189 F.3d 284, 286 (2d Cir.1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). The court must accept as true all factual allegations in the complaint as true and draw all reasonable inferences in favor of plaintiff. Id.; Jaghory v. New York State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir.1997). The issue to consider is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995). The court must confine its consideration “to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir.1999). A. As to the Section 1983 free speech claim To establish a First Amendment retaliation claim under section 1983, a plaintiff must show: (i) conduct by the plaintiff protected by the First Amendment, and (ii) that the defendant’s conduct was motivated by or substantially caused by the plaintiffs exercise of free speech. Board of County Commissioners v. Umbehr, 518 U.S. 668, 676, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996); Greenwich Citizens Committee, Inc. v. Counties of Warren and Washington Indust. Dev. Agency, 77 F.3d" }, { "docid": "4500933", "title": "", "text": "the secondary offering. Defendants Dean and Ross Blechman join in Twinlab’s motion, and also challenge the Plaintiffs’ assertions regarding their individual motive to commit fraud and their knowledge of the misleading statements. They further deny that control person liability exists because the Plaintiffs’ claims are insufficient to establish an underlying wrong and because the Plaintiffs fail to allege sufficient culpable acts. Defendant McCusker moves separately on essentially the same grounds as the Blechman. Defendants Denhakl, Dunbar, GEI and LGP focus their arguments on whether the Plaintiffs’ Securities Act claims in the first, second, and third causes of action are, in actuality, claims for fraud and should be subject to the pleading standards of Rule 9(b), which these Defendants claim the Plaintiffs failed to meet. In addition, these Defendants incorporate the arguments by Twinlab and allege that the Plaintiffs fail to plead a viable control person claim. Finally, Defendants Bear, Stearns and DLJ also argue that the causes of action against them should be held to Rule 9(b)’s pleading requirements and that the Plaintiffs fail to meet those standards. DISCUSSION The court may not dismiss a complaint under Fed.R.Civ.P. 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. King v. Simpson, 189 F.3d 284, 286 (2d Cir.1999); Bernheim v. Lift, 79 F.3d 318, 321 (2d Cir.1996). The court must accept as true all factual allegations in the complaint as true and draw all reasonable inferences in favor of plaintiff. Id.; Jaghory v. New York State Dept. of Educ., 131 F.3d 326, 329 (2d Cir.1997). The issue to consider is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995). The court must confine its consideration “to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Israel" }, { "docid": "21622081", "title": "", "text": "Dragone mailed communications and used the wires regarding the citations and/or appearance tickets. Finally, the plaintiff alleges that Justice La Vita adjudicated the hearings and unlawfully collected fines for the alleged violations of the vehicle and traffic law. The plaintiffs claim that all of the defendants violated 18 U.S.C. §§ 1962(b) and (d), the RICO statute; Casciano, Dragone, Feller, Katz, La Vita, Hall, Rothschild, Simmons, and Stabler violated 18 U.S.C. § 1962(c); and all of the defendants violated 42 U.S.C. § 1983 (“Section 1983”). The plaintiff also brings a New York State law cause of action for Money Had and Received against all of the Defendants except for Justice La Vita. Presently before the Court is a motion by the defendants to dismiss the complaint pursuant to Rules 12(b)(6) and 9(b). II. DISCUSSION A. The Standards 1. Rule 12(b)(6) In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court should dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his complaint which would entitle him to relief. King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). The court must accept as true all of the factual allegations set out in the complaint, draw inferences from those allegations in the light most favorable to the plaintiff, and construe the complaint liberally. See Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir.2000) (citing Desiderio v. National Ass’n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir.1999)). In its analysis under Rule 12(b)(6), the court “must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Tarskis, 211 F.3d at 39 (citing Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991)). The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Villager Pond, Inc." } ]

[ { "docid": "22191291", "title": "", "text": "dissenting). Thus, whatever facts may be alleged in any given indictment, there can never be a § 848 violation without a violation of § 846, although as the Lurz case illustrates, not every § 846 conspiracy entered into by a § 848 defendant is necessarily included within the § 848 charge. Our reaffirmance here of Sperling II, however, does not compel the conclusion that the lesser included § 846 conspiracy charged against Myers in count one was ineligible as a predicate for the § 848 continuing criminal enterprise charged in count two. To begin with, the statutory language is unambiguous. Section 848(a)(1) provides that any felony violation of Subchapters I and II of Chapter 13 of Title 21 is an eligible predicate, and nothing in the text of either § 848 or § 846 suggests that although a § 846 conspiracy is such a felony it does not qualify as a predicate for a § 848 charge. The reference in § 848 to “any” felony violation of the narcotics laws does not mean “any felony violation except a § 846 conspiracy”. In an analogous context under the Racketeer Influenced and Corrupt Organizations Act (RICO) we refused to exclude illegitimate enterprises from the expression “any enterprise” found in 18 U.S.C. § 1962. We found the word “any” to be “clear, precise and unambiguous,” and we noted that “Congress could, if it intended any other meaning, have inserted a single word of restriction.” United States v. Altese, 542 F.2d 104, 106 (2d Cir.1976), cert, denied, 429 U.S. 1039, 97 S.Ct. 736, 50 L.Ed.2d 750 (1977); accord United States v. Turkette, supra, 452 U.S. at 581, 101 S.Ct. at 2527 (“[h]ad Congress not intended to reach criminal associations [under RICO], it could easily have narrowed the sweep of the definition by inserting a single word, ‘legitimate.’ ”). Similarly here, had congress intended to exclude § 846 violations from the list of permissible predicates for a continuing criminal enterprise, it could have inserted limiting language in § 848. We are therefore obliged to follow this plain statutory language “in the absence of ‘a clearly" } ]

[ { "docid": "18576551", "title": "", "text": "Fe R. Co. v. Shane, 157 U.S. 348, 39 L.Ed. 727, 15 S.Ct. 641. “For it is, as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.” Lewis v. United States, 146 U.S. 370, 378, 36 L.Ed. 1011, 1014, 13 S.Ct. 136 [139]. 380 U.S. at 218-19, 85 S.Ct. at 835 (footnotes omitted; emphasis added). Since we read Swain and Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894), to say that the denial or impairment of the right to peremptory strikes is reversible error per se, and since we conclude that defendants’ right in this case was effectively, albeit inadvertently, denied, we must reverse the convictions and grant a new trial. IV. Defendants Ricks and King were charged and convicted jointly of interstate travel in aid of racketeering (18 U.S.C. § 1952), conspiracy to possess and distribute narcotics (21 U.S.C. § 846), and conducting a continuing criminal enterprise (21 U.S.C. § 848). King was also charged and convicted of two substantive distribution offenses in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2, and Ricks was indicted and convicted of three separate distribution offenses in violation of those same statutes. They challenge their continuing criminal enterprise (CCE) convictions under 21 U.S.C. § 848 because they believe the jury was erroneously instructed that the lesser included § 846 conspiracy could serve as a predicate offense for the CCE charge. Some of defendants’ cumulative convictions and sentences were clearly improper at the time they were imposed, because our cases had established, in harmony with numerous cases from other circuits, that §§ 846 and 841 specified lesser included offenses under § 848, and that separate convictions and punishments could not be imposed for the greater and lesser offenses. See United States v. Leifried, 732 F.2d 388 (4 Cir.1984); United States v. Raimondo, 721 F.2d 476 (4 Cir.1983), cert. denied, - U.S. -, 105 S.Ct. 133, 83 L.Ed.2d 74 (1984); United States v. Lurz, 666 F.2d 69, 75 (4 Cir.1981), cert." }, { "docid": "21567975", "title": "", "text": "and 1962(d); (3) operating a Continuing Criminal Enterprise (“CCE”) between January, 1977 and August, 1984 contrary to 21 U.S.C. § 848 (“kingpin” statute); (4) conspiracy in violation of the federal drug laws, as prohibited by 21 U.S.C. § 846; and (5) possession of cocaine with intent to distribute, as prohibited by 21 U.S.C. § 841(a)(1). Echeverri’s post-trial challenges to these convictions in the district court were rejected. Echeverri was sentenced on the CCE conviction to a 25-year term, without parole or probation, and a $25,000 fine. He was sentenced to a term of 20 years and a $25,000 fine on each of the RICO counts, and to 15 years and a $25,000 fine on each of the drug conspiracy and possession counts. All other sentences were made to run concurrently with his 25-year CCE sentence. II. In support of the CCE count, the government offered testimony concerning a plethora of drug-related activity. At the conclusion of the evidence, Echeverri argued that there could be no conviction on this count unless the members of the jury reached unanimous agreement on each drug offense that they believed had occurred and had constituted a “continuing series” of violations of the federal narcotics laws. In order to assure that the jury would not return a verdict of guilty without such unanimity, Echeverri requested the following jury instruction: The second element the government must prove beyond a reasonable doubt is that this offense was part of a continuing series of violations of the federal narcotics laws. A continuing series of violations is three or more violations of the federal narcotics laws committed over a definite period of time. You must unanimously agree on which three acts constitute the continuing series of violations. App. at 3597. Echeverri maintains that the district court committed reversible error by failing to adopt this or a similar charge, despite his request. We agree. Our conclusion is compelled by the recent decision in United States v. Beros, 833 F.2d 455 (3d Cir.1987), where this court addressed a similar unanimity issue. In Beros, the defendant, a union officer, was convicted on several" }, { "docid": "23452092", "title": "", "text": "kingpin statute” because it is designed to apply to ringleaders of large-scale illegal narcotics operations. In addition, Webster, along with defendant Thompson, was found guilty of violating 18 U.S.C. § 1962(c) (1976), part of the Racketeer Influenced and Corrupt Organizations (“RICO”) statute. Finally, the jury convicted Webster of conspiracy to violate narcotics laws, 21 U.S.C. § 846 (1976), of eighteen counts for unlawful use of the telephone, 21 U.S.C. § 843(b) (1976), and of three counts charging interstate travel in aid of an unlawful activity, 18 U.S.C. § 1952(a)(3) (1970). He was sentenced to twenty years for the RICO conviction, thirty years for the conspiracy conviction, eight years for each of the unlawful use of the telephone convictions, and five years for each of the interstate travel convictions. All sentences were to run concurrently with the fifty-year sentence under § 848. The trial judge provided in the sentencing order that if convictions on all counts should be affirmed on appeal, he would set aside the sentences imposed for the telephone counts “as merging into the greater sentence imposed under” the conspiracy count. A special parol term of fifteen years was imposed in addition to the term of imprisonment under § 848. Webster attacks his sentences on a variety of grounds. A. The Propriety of the Jury Instructions Regarding § 848 The provisions of 21 U.S.C. § 848(a) call for punishment of “[a]ny person who engages in a continuing criminal enterprise.” A person is engaged in a continuing criminal enterprise if— (1) he violates any provision of [21 U.S.C. §§ 801-966] the punishment for which is a felony, and (2) such violation is part of a continuing series of violations of [21 U.S.C. §§ 801-966]— (A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and (B) from which such person obtains substantial income or resources. 21 U.S.C. § 848(b). Count 34 of the indictment charged Webster with the violation of § 848, alleging that he" }, { "docid": "22134896", "title": "", "text": "and Conspiracy Finally, Miller contends that the district court erred in entering a judgment of conviction for conspiracy to distribute narcotics in violation of 21 U.S.C. § 846, as that conspiracy was a lesser included offense of conducting a continuing criminal enterprise in violation of 21 U.S.C. § 848, of which he was also convicted. He contends that convicting him on both counts constitutes multiple punishment for the same offense, which violates the Double Jeopardy Clause of the Fifth Amendment. Given the Supreme Court’s recent decision in Rutledge v. United States, - U.S. -, 116 S.Ct. 1241, 184 L.Ed.2d 419 (1996), ruling that “[a] guilty verdict on a § 848 charge necessarily includes a finding that the defendant also participated in a conspiracy violative of § 846; conspiracy is therefore a lesser included offense of CCE,” id. at-, 116 S.Ct. at 1250, the government concedes, and we agree, that Miller’s conviction for narcotics conspiracy should be reversed, and that count of the indictment against him should be dismissed. Although the former practice of this Court, when a defendant had been convicted of both offenses, was to instruct the district courts to “combine” the “conviction[ ] on the lesser offense[ ] ... with the conviction on the greater offense,” United States v. Osorio Estrada, 751 F.2d 128, 135 (2d Cir.1984), modified on reh’g on other grounds, 757 F.2d 27 (2d Cir.), cert, denied, 474 U.S. 830, 106 S.Ct. 97, 88 L.Ed.2d 79 (1985), leaving the defendant convicted of two offenses but punished for only one, the Supreme Court in Rutledge instructed that instead, one of the convictions must be dismissed, see - U.S. at- -, 116 S.Ct. at 1250-51 (remanding for dismissal of one of the counts). Accordingly, we remand for the district court to dismiss the narcotics conspiracy count against Miller. Miller also argues that his CCE conviction too must be set aside because the narcotics conspiracy was an impermissible predicate for CCE. We reject that contention. A lesser included § 846 conspiracy may serve as a predicate offense for a § 848 CCE conviction. See United States v. Young," }, { "docid": "23126406", "title": "", "text": "a continuing criminal enterprise, in violation of 21 U.S.C. § 848. Billy Joe was sentenced to concurrent terms of 365 months imprisonment and five years supervised release. Larry was sentenced to concurrent life terms, a consecutive five-year term for possession of a firearm during a drug trafficking offense, and five years supervised release. On appeal, they argue that conspiracy is a lesser included offense of continuing criminal enterprise and, therefore, punishment for both offenses violates the Double Jeopardy Clause. Both defendants ask this court to remand for resentencing. In addition, Larry Chambers requests that we vacate the conspiracy conviction and remand for re-sentencing on continuing criminal enterprise. The government concedes that the convictions for both conspiracy and continuing criminal enterprise cannot stand and the case must be remanded to the district court for dismissal of one of the convictions. However, the government argues that the district court has the discretion to vacate either the conspiracy or the continuing criminal enterprise conviction. In support of its argument that the continuing criminal enterprise conviction should be vacated, the government states: Because of an anomaly in the sentencing guidelines, Larry Chambers’ adjusted offense level for conspiracy is 40, while his adjusted offense level for CCE is only 36, making the conspiracy charge more serious than CCE. It would be an odd result, to say the least, for Larry and Billy Joe Chambers to receive a benefit as a result of being convicted of both CCE and conspiracy, instead of only the ordinarily less serious conspiracy charge. In Jeffers v. United States, 432 U.S. 137, 153, 155, 97 S.Ct. 2207, 2217, 2218, 53 L.Ed.2d 168 reh’g denied, 434 U.S. 880, 98 S.Ct. 241, 54 L.Ed.2d 164 (1977), the Supreme Court held that a defendant could be tried on multiple narcotic offenses arising from the same acts without raising a double jeopardy question even if some offenses are lesser included offenses of others; however, Congress did not intend to allow cumulative punishment for violations of section 846, conspiracy, and section 848, continuing criminal enterprise. In Ball v. United States, 470 U.S. 856, 864-65, 105 S.Ct." }, { "docid": "12288972", "title": "", "text": "CARL E. STEWART, Circuit Judge: Bonnie Burnette Erwin (“Erwin”) appeals from the district court’s denial of his motion for new trial based on newly discovered evidence. Erwin also appeals the district court’s entry of an amended judgment in accordance with this Court’s mandate, which vacated Erwin’s conspiracy conviction. Finding no error, we affirm. FACTUAL AND PROCEDURAL HISTORY On October 18, 1984, Erwin and numerous other persons were charged with various offenses arising from drug activity centered in South Dallas, Texas. The facts giving rise to these charges are detailed in United States v. Erwin, 793 F.2d 656 (5th Cir.1986). On January 24, 1985, Erwin was convicted of the following offenses: Count 1, conspiracy to distribute controlled substances (21 U.S.C. § 846); Count 2, engaging in a continuing criminal enterprise (“CCE”) (21 U.S.C. § 848); Count 3, conducting and participating in a racketeering enterprise (“RICO”) (18 U.S.C. § 1962(c) and 2); Counts 4 and 5, aiding and abetting possession with intent to distribute a controlled substance (21 U.S.C. § 841(a)(1)); Counts 10 and 11, aiding and abetting travel and traveling in interstate commerce with intent to distribute proceeds of an unlawful activity (18 U.S.C. § 1952(2)); Count 20, buying and receiving counterfeit obligations of the United States (18 U.S.C. § 473); Counts 21 and 24, distribution and intent to distribute a controlled substance (21 U.S.C. § 841(a)(1)); Count 25, carrying a firearm during the commission of a felony (18 U.S.C. § 924(c)(2)); and Counts 26 through 29, income tax evasion (26 U.S.C. § 7201). The district court sentenced Erwin to a term of life imprisonment without parole on the CCE conviction plus 120 years on the other substantive offenses. The district court ordered that the sentences run consecutively. On appeal, this Court reversed and vacated Erwin’s conviction for conspiracy on the ground that the district court failed to instruct the jury on the issue of single versus multiple conspiracies as requested by Erwin and his co-defendants. Erwin, 793 F.2d at 664. This Court also found that § 846 conspiracy is a lesser included offense of a CCE. Thus, we held that" }, { "docid": "7042505", "title": "", "text": "on which he was charged. In special interrogatories for the substantive RICO count, the jury unanimously found that the government had proven that Monsanto had committed, inter alia, Racketeering Act 5 (the conspiracy to distribute heroin) and Racketeering Act 8 (possession of heroin in July 1985). The jury also determined, however, that the government had not proven that Monsanto had committed Racketeering Act 7 (possession of heroin in October 1984). Nevertheless, in special interrogatories for the RICO conspiracy count, the jury unanimously found that the government had proven that Monsanto had conspired to commit all three of those Racketeering Acts. In addition, the jury convicted Monsanto of conspiracy to distribute heroin and of conducting a continuing criminal enterprise. But on these two latter counts, there were no special interrogatories. As a result, it was not established by a direct answer whether the jury agreed unanimously that the government had proven any particular set of overt acts with respect to the heroin conspiracy charge, or any specific narcotics trafficking offenses with respect to the CCE count. Defendant was sentenced to life without parole on the CCE conviction. He was sentenced to two 20-year terms of imprisonment on the RICO counts to run consecutively to one another but concurrently with the life sentence imposed for the CCE violation. The court, relying on the law of this circuit which holds that § 846 drug conspiracy is a lesser included offense to the § 848 CCE offense, imposed no sentence of imprisonment on the heroin conspiracy conviction. On direct appeal, Defendant argued, inter alia, (1) that the indictment was flawed because it failed to charge three eligible CCE predicates; (2) that, in the absence of a special interrogatory and verdict on the CCE predicates, the court could not be certain that the jury unanimously agreed on three specific and eligible predicates, and (3) that the jury charge allowed the jury to convict Defendant on the CCE count even if it found him guilty of the narcotics conspiracy alone. We affirmed, more than ten years ago. United States v. Simmons, 923 F.2d 934, 952 (2d" }, { "docid": "22156216", "title": "", "text": "§ 1963 would not have been distressed to see that twenty-year maximum added on to whatever penalty is authorized for an offense that is lesser included within the RICO conspiracy. On the other hand, though that Congress intended to authorize an enhanced penalty for a RICO conspiracy, it obviously did not go nearly as far as it might have when it set the maximum penalty at twenty years. And that Congress understood that a RICO conspiracy, like the one charged in Count 13 in this case, could involve murder, a state offense specifically listed in the definition of racketeering activity, 18 U.S.C. § 1961(1)(A). Congress has also made clear that it wants heavy penalties authorized for narcotics activity, but that sentiment alone does not justify an inference that Congress intended to authorize cumulative penalties for a RICO narcotics conspiracy and a lesser included non-RICO narcotics conspiracy. For organized narcotics activity, Congress has already enhanced the penalty for conspiracy from the five years authorized by 18 U.S.C. § 371 to the fifteen years authorized by 21 U.S.C. §§ 841(b)(1)(A), 846 and to the thirty years for a second offender, id., and also provided a maximum sentence of life imprisonment for those convicted of engaging in a continuing criminal narcotics enterprise, 21 U.S.C. § 848(a). While this array of penalties demonstrates that Congress is intent on authorizing substantial penalties, it also indicates that Congress has been precise in setting different máximums for different degrees of involvement in narcotics activity. The precision of the congressional scheme would be distorted if cumulative penalties could be imposed whenever a section 846 narcotics conspiracy is a lesser included offense within a RICO narcotics conspiracy. For these reasons, I conclude that it was impermissible to impose cumulative sentences upon Forman, Morris, and Wheelings with respect to Counts 1 and 13. I would vacate the sentences of these defendants on these counts and remand to permit Judge Pollack to impose an appropriate sentence on Count 13, the greater of the two offenses, up to the maximum of 20 years imprisonment and a fine of $25,000. See McClain v." }, { "docid": "2610198", "title": "", "text": "of conducting a full-blown evidentiary hearing. See Rules Governing Habeas Corpus Cases, 28 U.S.C. app. fol. § 2255 (1982). See also Blackledge, 431 U.S. at 81-82, 97 S.Ct. at 1632-33 (discussing the advantages of Rules 6 and 7 of the Rules Governing Habeas Corpus for supplementing the record while avoiding the necessity of a hearing). III. SCADUTO’S RESENTENCING Scaduto appeals from his resentence by the district court following the disposition of the direct appeal. Scaduto was convicted at trial of conspiracy to import heroin (21 U.S.C. §§ 952, 960, 963), conspiracy to distribute heroin (§§ 841, 846), the substantive crimes of possession of heroin with intent to distribute (§ 841) and importation of heroin (§§ 952, 960), and, managing a continuing criminal enterprise (§ 848). He was sentenced to a 35 year term with a $100,000 fine for the § 848 conviction, a 14 year term and a $25,000 fine for each of the two conspiracy convictions — these terms to run concurrently with each other and consecutively to the § 848 sentence — and a 15 year term and $25,000 fine for each of the two convictions for the substantive crimes, these terms to run concurrently to each other, but consecutively to those on the other counts. See Aiello, 771 F.2d at 626-27. On Scaduto’s direct appeal we followed the procedure outlined in United States v. Osorio Estrada, 751 F.2d 128 (2d Cir.1984), modified on reh’g on other grounds, 757 F.2d 27 (2d Cir.), cert. denied,—U.S.-, 106 S.Ct. 97, 88 L.Ed.2d 79 (1985), for handling convictions for lesser and greater offenses. Thus, we vacated Scaduto’s sentences for the conspiracy convictions and remanded the case to the district court for it to combine those convictions with the continuing criminal enterprise conviction, as well as for resentencing on the latter conviction. See Aiello, 771 F.2d at 634. Upon remand, the district court ultimately vacated the conspiracy convictions, thereby effectively combining them with the § 848 conviction, and increased the sentence for the § 848 conviction from 35 to 45 years. The § 848 sentence was concurrent with the sentences for the" }, { "docid": "11651077", "title": "", "text": "be smuggled into the United States and how she regularly returned the empty jars to Van Sichem to be reused. Cobbs’ testimony was corroborated in a number of respects by other evidence, including the seizure from Van Sichem’s apartment of two jars of the hair cream product showing signs of the type of use Cobbs described. The jury found Underwood guilty of participating in a racketeering enterprise, 18 U.S.C. § 1962(c) (RICO); conspiring to participate in a racketeering enterprise, 18 U.S.C. § 1962(d) (RICO conspiracy); participating in a narcotics conspiracy, 21 U.S.C. § 846; and operating a continuing criminal enterprise, 21 U.S.C. § 848 (CCE). Underwood was sentenced under the Guidelines to life imprisonment on the CCE count and concurrent terms of 20 years each on the RICO and RICO conspiracy counts; his sentence on the narcotics conspiracy count was combined with the CCE sentence. Discussion 1. The Brady Issue When Cobbs was shown an array of photocopies of photographs before Underwood’s trial, including a photocopy of a telefaxed photograph of Van Sichem, she identified another man as Van Sichem. Shortly thereafter, when the government obtained an actual photograph of Van Si-chem to replace the telefaxed copy and showed Cobbs another array of photographs, Cobbs correctly identified Van Si-chem. About a month after the jury verdict, in February 1990, the government discovered that it had inadvertently failed to disclose this information to the defense pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and so informed defense counsel. Underwood thereupon moved for a new trial. After an evidentiary hearing, the district court ruled that it was “inconceivable” that use of the undisclosed information to impeach Cobbs would have resulted in a different verdict, and denied the motion. The government’s inadvertent nondisclosure of impeachment evidence requires reversal of a conviction only if the evidence is “material,” i.e., “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" }, { "docid": "23055041", "title": "", "text": "court held that where a defendant had been convicted of both conspiracy under 21 U.S.C. § 846 and CCE under 21 U.S.C. § 848, the conspiracy charge was a lesser included offense of the CCE conviction and thus merged into the CCE conviction. Id. at 345. As a result, the court ordered the conspiracy convictions vacated. Id. Similarly, in United States v. Davis, 809 F.2d 1194, 1204-05 (6th Cir.1987), this court again upheld the continuing criminal enterprise conviction and remanded with instructions to dismiss the conspiracy convictions. However, in United States v. Chambers, 944 F.2d 1253 (6th Cir.1991), we were concerned that, due to an anomaly in the sentencing guidelines, vacating the defendants’ sentences on the lesser included offense of conspiracy actually resulted in a lesser sentence. We then surveyed the circuits that had addressed the question of which charge to vacate and held: None of those cases discuss, however, any reason for selecting the conspiracy conviction, rather than the continuing criminal enterprise conviction, for dismissal except to observe that the conspiracy offense is the “lesser” of the two. In this case, however, measured by the guidelinespreseribed sentences at least, conspiracy is not the less serious offense because of what the government calls an anomaly in the sentencing guidelines, although it is, in terms of its elements, included in the.criminal enterprise offense. [Here, defendant’s] adjusted offense level for conspiracy is 40, while .his adjusted offense level for continuing criminal enterprise is only 36. [Defendant] wants the conspiracy conviction vacated, and the government wants the continuing criminal enterprise conviction vacated. There being no binding precedent directly controlling the matter, we think it is a decision for the trial court to make. We shall, therefore, remand [defendants’] convictions for conspiracy and continuing criminal enterprise, with instructions that the district court vacate one of the two convictions and its corresponding sentence in each defendant’s case. The district court must also consider what, if any, effect the vacated conviction and sentence will have upon sentences imposed under the guidelines for each defendant’s other convictions. Id. at 1269 (internal quotation marks and citation omitted). Critically," }, { "docid": "7042506", "title": "", "text": "Defendant was sentenced to life without parole on the CCE conviction. He was sentenced to two 20-year terms of imprisonment on the RICO counts to run consecutively to one another but concurrently with the life sentence imposed for the CCE violation. The court, relying on the law of this circuit which holds that § 846 drug conspiracy is a lesser included offense to the § 848 CCE offense, imposed no sentence of imprisonment on the heroin conspiracy conviction. On direct appeal, Defendant argued, inter alia, (1) that the indictment was flawed because it failed to charge three eligible CCE predicates; (2) that, in the absence of a special interrogatory and verdict on the CCE predicates, the court could not be certain that the jury unanimously agreed on three specific and eligible predicates, and (3) that the jury charge allowed the jury to convict Defendant on the CCE count even if it found him guilty of the narcotics conspiracy alone. We affirmed, more than ten years ago. United States v. Simmons, 923 F.2d 934, 952 (2d Cir.1991). In 1997, Defendant filed a pro se habeas petition pursuant to 28 U.S.C. § 2255, contending, inter alia, (1) that his convictions for violating both § 846 (conspiracy) and § 848(CCE) violated his rights under the Double Jeopardy Clause; and (2) that the jury instructions allowed the conviction to rest on legally impermissible factual predicates. While the habeas petition was pending, the Supreme Court issued its decision in Richardson v. United States, which held that a jury in a CCE case “must unanimously agree not only that the defendant committed some ‘continuing series of violations’ but also that the defendant committed each of the individual ‘violations’ necessary to make up that ‘continuing series.’” 526 U.S. 813, 815, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). In view of Richardson, the district court al lowed Monsanto to amend his petition to claim that the district court’s jury instruction violated Richardson. In August 1999, the district court rejected Monsanto’s double jeopardy claim. Monsanto v. United States, 1999 WL 649047 (S.D.N.Y. Aug.25, 1999). The court concluded that, because" }, { "docid": "23549751", "title": "", "text": "to violate the substantive RICO sections, but actual proof that Loiacono associated himself with the enterprise and committed at least two predicate acts in connection with the conduct of the enterprise. The significant distinctions between the proof required to establish the RICO conspiracy and the underlying substantive RICO offense belie Loiacono’s claim that convictions under both the substantive and conspiracy counts violate the double jeopardy clause. See Pinkerton v. United States, 328 U.S. 640, 643-44, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946) (convictions under both a conspiracy statute and underlying offense do not violate double jeopardy clause). Although the predicate acts charged under the two offenses were the same, proof of the acts was only one element necessary to establish Loiacono’s guilt of those offenses. Accordingly, because the Blockberger test was satisfied here, we find no double jeopardy violation. F. Merger of lesser included offense into continuing criminal enterprise conviction. Ernesto J. Benevento contends, and the government agrees, that the district court erred in sentencing him to concurrent terms of imprisonment on both count one, the narcotics conspiracy count, and count six, the continuing criminal enterprise count. The parties agree that the narcotics conspiracy charge is a lesser included offense of a continuing criminal enterprise violation, and it is clear that “a conviction on a lesser included offense may not stand as a separate conviction.” United States v. Osorio Estrada, 751 F.2d 128, 134 (2d Cir.1984), modified on reh’g on other grounds, 757 F.2d 27, cert. denied, 474 U.S. 830, 106 S.Ct. 97, 88 L.Ed.2d 79 (1985). When an individual is sentenced on both a lesser and greater offense, the conviction on the lesser charge is “combined” with the conviction on the greater offense, although it is not “merged out of existence.” Id. at 135. Nevertheless, the conviction on the lesser offense may not have any collateral effect, unless the conviction on the greater charge is subsequently overturned. See United States v. Aiello, 771 F.2d 621, 634-35 (2d Cir.1985). We therefore vacate Ernesto J. Benevento’s sentence on count one, and we remand for the purpose of combining the conviction" }, { "docid": "23055040", "title": "", "text": "issue and held that, given the requirements of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182/76 L.Ed. 306 (1932), conspiracy, under 21 U.S.C. § 846, is a lesser included offense of CCE, 21 U.S.C. § 848. Rutledge v. United States,- U.S. -,-, 116 S.Ct. 1241, 1247, 134 L.Ed.2d 419 (1996). As such, conviction under both statutes constitutes cumulative or multiple punishment not authorized by Congress. Id. at-, 116 S.Ct. at 1249. Therefore, because “Congress intended to authorize only one punishment ,, one of petitioner’s convictions, as well as its concurrent sentence, is unauthorized punishment for a separate of fense and, must be vacated.” Id. at-- -, 116 S.Ct. at 1250-51, (internal quotation marks, brackets, and citation omitted). -The Supreme Court did not determine which offense must be vacated. • Although the government concedes the double jeopardy issue on appeal, Avery contends that the CCE conviction should be vacated, while the government merely claims that the conspiracy conviction should be vacated. In United States v. Schuster, 769 F.2d 337 (6th Cir.1985), this court held that where a defendant had been convicted of both conspiracy under 21 U.S.C. § 846 and CCE under 21 U.S.C. § 848, the conspiracy charge was a lesser included offense of the CCE conviction and thus merged into the CCE conviction. Id. at 345. As a result, the court ordered the conspiracy convictions vacated. Id. Similarly, in United States v. Davis, 809 F.2d 1194, 1204-05 (6th Cir.1987), this court again upheld the continuing criminal enterprise conviction and remanded with instructions to dismiss the conspiracy convictions. However, in United States v. Chambers, 944 F.2d 1253 (6th Cir.1991), we were concerned that, due to an anomaly in the sentencing guidelines, vacating the defendants’ sentences on the lesser included offense of conspiracy actually resulted in a lesser sentence. We then surveyed the circuits that had addressed the question of which charge to vacate and held: None of those cases discuss, however, any reason for selecting the conspiracy conviction, rather than the continuing criminal enterprise conviction, for dismissal except to observe that the conspiracy offense is the" }, { "docid": "11651076", "title": "", "text": "street-level distribution of heroin and the importation of large quantities of heroin from Europe to the United States. The government presented the testimony of more than 50 witnesses, including a number of former members of Underwood’s street-level distribution organization, and introduced more than 250 exhibits. Underwood’s claims on appeal principally relate to the testimony of Carolyn Cobbs. Cobbs, a former flight attendant, testified that she worked for Underwood as a courier of heroin and money from 1983 until 1988. She would smuggle large amounts of cash, typically $50,000 per trip, from the United States to Amsterdam or Brussels, where she would give the cash to Stuart Van Sichem, Underwood’s heroin supplier.- In the earlier years the heroin was mailed to the United States, but beginning in 1986 Cobbs herself carried the heroin on her return trip. Between January 1986 and September 1988 Cobbs made at least 30 such trips. Cobbs described in some detail how the heroin was packed by Van Sichem, in the hollow sides of jars of a discontinued hair cream product, to be smuggled into the United States and how she regularly returned the empty jars to Van Sichem to be reused. Cobbs’ testimony was corroborated in a number of respects by other evidence, including the seizure from Van Sichem’s apartment of two jars of the hair cream product showing signs of the type of use Cobbs described. The jury found Underwood guilty of participating in a racketeering enterprise, 18 U.S.C. § 1962(c) (RICO); conspiring to participate in a racketeering enterprise, 18 U.S.C. § 1962(d) (RICO conspiracy); participating in a narcotics conspiracy, 21 U.S.C. § 846; and operating a continuing criminal enterprise, 21 U.S.C. § 848 (CCE). Underwood was sentenced under the Guidelines to life imprisonment on the CCE count and concurrent terms of 20 years each on the RICO and RICO conspiracy counts; his sentence on the narcotics conspiracy count was combined with the CCE sentence. Discussion 1. The Brady Issue When Cobbs was shown an array of photocopies of photographs before Underwood’s trial, including a photocopy of a telefaxed photograph of Van Sichem, she identified" }, { "docid": "23436117", "title": "", "text": "and sentenced for both a Continuing Criminal Enterprise and a conspiracy. The Fifth Amendment double jeopardy clause protects defendants from being tried and punished for the same offense twice. Canino claims that the conspiracy charge of which he was convicted is a lesser included offense of a CCE charge and therefore constitutes the same offense for Fifth Amendment purposes. The Seventh Circuit rejected this argument in United States v. Bond, supra. In Bond, this court held that a court may impose a concurrent sentence for a § 846 conspiracy and a § 848 CCE conviction: The point ... is that one can both conspire (agree to run a drug business) and run a continuing criminal enterprise (strike the agreement and succeed); the conspiracy ... is a lesser included of-fense____ The two statutes reach the same group of persons. It is not illogical to convict a person of both agreeing to do something (§ 846) and succeeding on a grand scale (§ 848). Id. at 1233. The court went on to hold that “§ 846 and § 848 do not create identical offenses,” id. at 1239, and “that concurrent sentences may be imposed under § 846 and § 848____ provided the cumulative punishment does not exceed the maximum under the CCE Act.” Id. See also Jeffers v. United States, 432 U.S. 137 at 157-158, 97 S.Ct. 2207 at 2219-2220, 53 L.Ed.2d 168 (1977); United States v. Pace, 898 F.2d 1218, 1236-37, fn. 6, (7th Cir.1990) (consecutive sentences for CCE and conspiracy convictions were vacated and remanded for sentencing consistent with Bond which allowed concurrent sentencing). In this case Canino received 26 years imprisonment for each offense. The CCE conviction is non-parolable. The maximum allowable sentence for a CCE conviction is life imprisonment. Thus, the defendant’s cumulative punishment clearly does not exceed the maximum allowable under the CCE conviction. If for any reason the CCE conviction is overturned as a result of a collateral attack, the conspiracy conviction and sentence will remain. This is also true for the special assessments. In Jeffers, it was held that the $100,000 maximum fine allowed under" }, { "docid": "3626137", "title": "", "text": "occasion could not be punished for both receiving, see 18 U.S.C. § 922(h), and possessing, see 18 U.S.C.App. § 1202(a)(1), a firearm. The district court in Ball had imposed concurrent sentences for the two violations, but the Supreme Court held that having the sentences run concurrently still did not cure the double-punishment problem, citing to the potential adverse collateral consequences that stem from a separate conviction. See id., 470 U.S. at 865, 105 S.Ct. at 1673 (collateral consequences might include delayed parole eligibility, increased sentence under recidivist statute for future offense, and impeachment of defendant’s credibility). Instead, the Court remanded to the district court to exercise its discretion by vacating one of the two convictions. In United States v. Aiello, 771 F.2d 621 (2d Cir.1985), decided after Ball, we noted that Ball did not address the possibility that the greater offense on which the district court imposed judgment on remand might subsequently be reversed, and thereby permit the defendant to completely escape punishment for his crime. Id. at 634. Thus, we continued our pre-Ball practice of combining a lesser-included conviction into a greater conviction, see, e.g., Osorio Estrada, 751 F.2d at 135, concluding that there is no practical difference between the Supreme Court's prescription to vacate a conviction and our practice of ‘combining’ a lesser conviction into a conviction on a greater offense, except that if the conviction on the greater offense were eventually to be overturned, our practice would, by design, resuscitate the lesser conviction and thereby ensure that the defendant would not avoid punishment for the lesser crime. We do not believe that the potential to reactivate a conviction in this way creates impermissible cumulative punishments. Aiello, 771 F.2d at 634 n. 6 (emphasis in original). We generally have followed this procedure. See, e.g., United States v. Avelino, 967 F.2d 815, 817 (2d Cir.1992) (vacating and remanding to the district court to combine two counts where defendant was convicted under separate statutory provisions for the same conduct); Benevento, 836 F.2d at 73 (vacating lesser-included narcot-ies-conspiracy sentence and remanding to district court to combine conviction on lesser offense with" }, { "docid": "6427412", "title": "", "text": "he was convicted; (2) consideration of whether to impose the two-level enhancement authorized under § 2Dl.l(b)(l) of the United States Sentencing Guidelines for Colon’s possession of firearms; and (3) return of the $50 special assessment fee imposed on this count. D. Vacatur of a Defendant’s Conviction Required by Supreme Court Holding in Rutledge v. United States Appellant Ralph Rivera was convicted on a count of narcotics conspiracy, and a count which charged Rivera with engaging in a continuing criminal enterprise (“CCE”) in violation of 21 U.S.C. § 848(a), among other counts. In sentencing Rivera, the district court entered a written judgment on both counts, but pronounced a single sentence of life imprisonment, thus following the prevailing practice in this Circuit at the time, which was to allow the two separate convictions to stand — even though the conspiracy count was acknowledged to be a lesser-included offense of the CCE conviction-but to combine them for purposes of sentencing so that only one sentence, on the CCE count, would be imposed. The government concedes, and we hold, that in light of the Supreme Court’s decision in Rutledge v. United States, — U.S. -, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), Rivera’s convictions for both the narcotics conspiracy and the CCE offense cannot stand, and that one count of conviction must be vacated. In Rutledge, the Supreme Court expressly disapproved of the practice followed by courts in this Circuit. Rutledge held that a narcotics conspiracy charge is a lesser-in-eluded offense of a charge of engaging in a CCE, but entry of a judgment on- both a CCE count and a conspiracy count “amounts to cumulative punishment not authorized by Congress.” Rutledge, — U.S. at -, 116 S.Ct. at 1248. The Court noted that, if nothing else, entry of judgment on both convictions resulted in the assessment of an extra $50 special assessment. Id. The Court specifically disapproved of the “Second Circuit’s practice of entering concurrent judgments,” id. at -, 116 S.Ct. at 1250, and held in that case that “ ‘[o]ne of [the defendant’s] convictions ... is unauthorized punishment for a separate offense’" }, { "docid": "16976010", "title": "", "text": "FEINBERG, Circuit Judge: William R. Underwood appeals from an order entered in March 1993 in the United States District Court for the Southern District of New York, Miriam Goldman Cedarb-aum, J. Judge Cedarbaum’s Memorandum Opinion and Order denied Underwood’s petition pursuant to 28 U.S.C. § 2255 to vacate his sentence of life imprisonment. For reasons given below, we affirm. Factual Background I. In January 1990, a jury found Underwood guilty of participating in a racketeering enterprise, 18 U.S.C. § 1962(c) (RICO); conspiring to participate in a racketeering enterprise, 18 U.S.C. § 1962(d) (RICO conspiracy); participating in a narcotics conspiracy, 21 U.S.C. . § 846; and operating a continuing criminal enterprise (CCE), 21 U.S.C. § 848(a).- Under the Sentencing Guidelines, Underwood was subject to a mandatory sentence of life imprisonment on the CCE count. He received concurrent terms of 20 years each on the RICO and RICO conspiracy counts. His sentence on the narcotics conspiracy count was combined with his sentence on the CCE count. In May 1991, this court affirmed Underwood’s conviction and sentence on his direct appeal. United States v. Underwood, 932 F.2d 1049 (2d Cir.), cert. denied, —- U.S. -, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991) (Underwood I). Seven months after certio-rari was denied, Underwood filed a petition pursuant to 28 U.S.C. § 2255 seeking to vacate his sentence. Underwood repeated the claim, already made at his sentencing and in his direct appeal, that the district court had erred in sentencing him according to the Sentencing Guidelines because the jury made no specific finding that his criminal conduct had continued beyond November 1,1987, the effective date of the guidelines. Because the judge, rather than the jury, found at sentencing that his criminal conduct continued past the effective date, Underwood argued that he should be resentenced under the pre-guide-lines law. That law prescribed a sentence ranging from 10 years to life, subject to the court’s discretion, rather than a mandatory life term as prescribed by the guidelines. Thus, when this argument was made to Judge Cedarbaum on the § 2255 petition, this court had already rejected it on" }, { "docid": "23327354", "title": "", "text": "KRAVITCH, Circuit Judge: Carl Louis Coppola (“Coppola”) and Frank Church (“Church”) were convicted by a Northern District of Georgia jury on RICO and RICO-conspiracy counts in violation of 18 U.S.C. §§ 1962(c) and 1962(d). Coppola was also convicted on three narcotics counts involving the purchase and distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and on one count of engaging in a continuing criminal enterprise (“CCE”) in violation of 21 U.S.C. § 848. The RICO charges concerned an enterprise that revolved around Coppola and a changing roster of associates and that engaged in a variety of criminal activity over a number of years. Coppola and Church filed motions for a new trial or acquittal, which the district court denied. The court sentenced Coppola to fifty-five years in prison: forty years for the CCE conviction, to be served consecutively with concurrent fifteen-year sentences for convictions of cocaine possession and the RICO violations. The court sentenced Church to fifteen years in prison on the RICO convictions. Coppola and Church appeal their convictions, claiming, inter alia, insufficiency of the evidence and a material variance between the indictment and the proof at trial on the RICO counts. Coppola further challenges his convictions by arguing that certain evidence was improperly admitted. Coppola also argues that if his CCE conviction stands, then his convictions on Counts Five and Seven, two conspiracy counts that constituted lesser included offenses of the CCE, should merge with the CCE conviction and be vacated. The government concedes that Coppola cannot be convicted on both the CCE and these conspiracy counts. We vacate Coppola’s conviction on Counts Five and Seven, but affirm in every other respect. BACKGROUND On May 9, 1986, a Northern District of Georgia grand jury returned an eleven- count indictment against Coppola, Church, and eleven other co-defendants. The indictment included, inter alia, RICO and RICO conspiracy counts listing twenty-five predicate acts of racketeering and 121 overt acts in furtherance of the RICO conspiracy, and counts involving cocaine and marijuana importation and distribution and engaging in a CCE. During a trial that lasted more than three" } ]

[ { "docid": "22749658", "title": "", "text": "which he pled guilty. Although this is consistent with the United States Supreme Court holding in Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), Dabeit wishes to preserve the issue for further review based on a good faith belief that the decision will soon be overturned. This argument is without merit. In a recent case, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362, 147 L.Ed.2d 435 (2000), the Supreme Court expressly declined to overrule Almendarez-Torres. This court has a duty to follow precedent, especially Supreme Court precedent. See Bhandari v. First National Bank of Commerce, 829 F.2d 1343, 1352 (5th Cir.1987)(Higginbotham, J., concurring). The Supreme Court has left no doubt that as a constitutionally inferior court, we are compelled to follow faithfully a directly controlling Supreme Court precedent unless and until the Supreme Court itself determines to overrule it. We may not reject, dismiss, disregard, or deny Supreme Court precedent, even if, in a particular case, it seems pellucidly clear to litigants, lawyers, and lower court judges alike that, given the opportunity, the Supreme Court would overrule its precedent. Hopwood v. State of Texas, et. al., 84 F.3d 720, 722 (5th Cir, 1996). Since the Supreme Court has unequivocally spoken on this issue, there was no error in failing to inform Dabeit that the aggravated felony provision was an essential element of his sentencing. CONCLUSION For the reasons stated above, we affirm the district court’s sentencing of the appellant. . Dabeit and the attorney for the government did not reach a plea agreement. Rather, Da-beit pled guilty to the indictment. . A factual resume summarizing the events leading to the indictment was introduced at the rearraignment proceeding. The factual resume, which listed Dabeit’s previous conviction as an aggravated felony, was signed by the parties. The court also asked Dabeit if he agreed with the facts contained within the resume. After an affirmative response, Da-beit was asked to stipulate under oath that the allegations in the factual resume were correct. . Dabeit claims that in order for his § 1014 conviction" } ]

[ { "docid": "1753916", "title": "", "text": "risk that physical injury will result. Accordingly, the offense qualifies as a violent felony under the residual clause of § 924(e), and the district court did not err, let alone plainly err, in enhancing Davis’s sentence under the ACCA. III. SIXTH AMENDMENT Davis next argues that the district court violated the Sixth Amendment when it relied on the PSR and evidence of his prior convictions (the charging instruments and the judgments) to determine that the prior convictions were violent felonies and that the crimes were committed on different occasions from one another. In support, he cites United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and he argues that Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), should be reconsidered. As Davis concedes, review is for plain error; Davis raised no objection to the use of the evidence of his prior convictions in determining his sentence. In Apprendi the Court held that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. This circuit has stated that “[i]n so holding, however, the Court explicitly excepted enhancements like that provided by Section 924(e), which are based upon prior convictions.” United States v. Stone, 306 F.3d 241, 243 (5th Cir.2002). The holding in Stone is premised on Almendarez-Torres, in which the Court held that Congress could treat recidivism as a sentencing factor rather than an element of the offense when codifying the penalties for a violation of 8 U.S.C. § 1326(a). 523 U.S. at 247, 118 S.Ct. 1219. The Court in Apprendi explicitly refrained from overruling Almenda-rez-Torres. Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348. Further, in James the Court held that by applying the categorical approach to determine if a defendant’s pri- or conviction is a violent felony, the court avoids any inquiry into the underlying facts of the defendant’s" }, { "docid": "22917630", "title": "", "text": "the district court improperly enhanced both his sentences based on his four prior convictions for violent and drug-related felonies. The problem with these decisions, he argues, is that the government did not allege the prior convictions in the indictment. Marseille argues that the government operated under a duty to do so based on the reasoning of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Almendarez-Torres v. United States, the Supreme Court held that the government need not allege in its indictment and need not prove beyond a reasonable doubt that a defendant had pri- or convictions for a district court to use those convictions for purposes of enhancing a sentence. 523 U.S. 224, 228, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Though its later opinion in Apprendi questioned the continuing validity of the Almendarez-Torres holding, it explicitly refused to reconsider the issue. 530 U.S. at 489-90, 120 S.Ct. 2348. Marseille asks this court to extend Apprendi’s rationale and overrule Almendarez-Torres. As Marseille acknowledges, his wish is beyond our powers to grant. United States v. Thomas, 242 F.3d 1028, 1034-35 (11th Cir.2001) (refusing to reconsider the holding of Almendarez-Torres in the light of Apprendi because of the “very basic fact that we cannot overrule Supreme Court decisions”). Marseille admits that he has prior qualifying convictions. He challenges the district court’s determination that he was a career offender only on the ground that the government failed to allege those convictions in the indictment. We affirm the district court’s determination. V. For the reasons given above, we AFFIRM the judgment of the district court in all respects. . Citations to the Guidelines, unless otherwise noted, are to the 2002 version, which is the version that was in effect at the time of Marseille's sentencing. . Marseille was previously convicted of (1) attempted murder and carrying a concealed firearm, (2) burglary with a battery, (3) possessing cocaine with intent to sell it, and (4) possessing cocaine with intent to sell it. . Marseille does not appeal the district court's treatment of Marseille's juvenile convictions. . The parties" }, { "docid": "16406246", "title": "", "text": "4A1.2(c)(l); United States v. Moore, 997 F.2d 30, 33 (5th Cir.1993). Alfaro only received a sentence of ten days imprisonment for his evading arrest conviction. Thus, the district court erred in assigning a criminal history point for this offense. Because we vacate Alfa-ro’s sentence based on the sixteen-level enhancement, however, we need not address whether the court’s erroneous imposition of the criminal history point is plain error requiring reversal. C. The Constitutionality of 8 U.S.C. § 1326(b) Finally, Alfaro argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional. While Alfaro notes that this argument appears to be foreclosed by the Supreme' Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), he contends that Almendarez-Torres was wrongly decided. In support of his argument, he claims that Justice Thomas, who provided a critical fifth vote in Almendarez-Torres, now appears to have repudiated his position in Almendarez-Torres. Thus, Alfaro concludes that five members of the Supreme Court now appear to be of the view that Almendarez-Torres was incorrectly decided. Because Alfaro made no objection to the alleged constitutional error below, we review his claim for plain error. Olano, 507 U.S. at 732-37, 113 S.Ct. 1770; Knowles, 29 F.3d at 951. In this circuit, “[i]t is self-evident that basing a conviction on an unconstitutional statute is both ‘plain’ and ‘error’ .... ” Knowles, 29 F.3d at 951. Alfaro’s argument that §§ 1326(b)(1) and (2) are unconstitutional, however, fails in light of Almendarez-Torres and Fifth Circuit precedent. As Alfaro recognizes, in Almendarez-Torres, the Supreme Court effectively rejected his argument. See Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. Almendarez-Torres has not been overruled and is still good law. Additionally, this court has repeatedly rejected arguments like the one made by Alfaro as being foreclosed by Almendarez-Torres. See, e.g., United States v. Mendez-Villa, 346 F.3d 568, 570-71 (5th Cir.2003) (per curiam) (holding that Almendarez-Torres remains binding despite Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)); United States v. Delgado-Nunez, 295 F.3d 494, 498" }, { "docid": "16239008", "title": "", "text": "PER CURIAM: Agustín Rivera-Perez appeals the sentence imposed after he pleaded guilty to one count of illegally reentering the United States after having been convicted of a felony and deported. Rivera contends that his sentence deprived him of due process of law because the indictment did not allege the prior conviction, which he contends is an element of the offense. Rivera concedes that this claim is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and he seeks only to preserve the issue for Supreme Court review in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi did not overrule Almendarez-Torres. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000), cert. denied, 531 U.S. 1202, 121 S.Ct. 1214, 149 L.Ed.2d 126 (2001). This argument provides no basis for relief. Rivera contends that his sentence must be vacated because his prior conviction did not warrant a 16-level increase in the offense level. The offense level for illegal reentry after deportation is increased by 16 levels “[i]f the defendant previously was deported, or unlawfully remained in the United States after'—a conviction for a felony that is ... a crime of violence!)]” U.S.S.G. § 2L1.2(b)(l)(A) (Nov.2001). Rivera’s conviction for attempted indecency with a minor by exposure constitutes a “crime of violence.” See United States v. Zavala-Sustaita, 214 F.3d 601, 607 (5th Cir.2000); United States v. Rayo-Valdez, 302 F.3d 314, 316 (5th Cir.2002). Rivera argues, however, that the attempted-indecency conviction was not a “felony” crime of violence because, according to his plea agreement and Tex. Penal Code § 12.44, he was subject to no more than one year in prison. The applicable guideline comment defines “felony” as “any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” U.S.S.G. § 2L1.2, comment. (n.l(B)(iv)). Attempted indecency with a minor by exposure is a Texas state jail felony punishable by a maximum sentence of two years. See Tex. Penal Code §§ 21.11, 15.01(d), 12.04(4) & (5), 12.35(a). However, Rivera’s plea bargain provided that his case" }, { "docid": "4389911", "title": "", "text": "the use of force must be intentional for a prior offense to qualify as a “crime of violence” for purposes of the 16-level enhancement. We must assume that the Sentencing Commission was aware of our holding in Chapa-Garza when it amended § 2L1.2 and would have explicitly incorporated a state of mind requirement had it intended to do so. It did not. Absent explicit direction, we will not read a state of mind requirement into the guideline. See United States v. Fry, 51 F.3d 543, 546 (5th Cir.1995) (holding that, where “the language of section 2K2.1(a)(3) makes no reference to the defendant’s mental state,” “[t]he section is plain on its face and should not ... be read to imply a scienter requirement.”); cf. United States v. Myers, 104 F.3d 76, 81 (5th Cir.1997) (“As a straightforward matter of textual interpretation, we will not presume that a statutory crime requires specific intent in the absence of language to that effect.”). Because the Texas crime of intoxication assault has as an element the use of force against the person of another, we conclude that the district court did not err in imposing the 16-level enhancement. We therefore AFFIRM the sentence imposed by the district court. . Vargas-Duran also contends, solely for the purpose of preserving the issue for further appeal, that the \"aggravated felony” provision of 8 U.S.C. § 1326(b)(2) is unconstitutional in the wake of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which Apprendi expressly declined to overrule. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348 (\"Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision’s validity and we need not revisit it for purposes of our decision today ....”) (footnote omitted). Thus, no further consideration is necessary. See United States v. Dabeit," }, { "docid": "1408636", "title": "", "text": "v. Perez-Macias, 335 F.3d 421, 425 (5th Cir.2003). In Rodriguez-Arreola, 313 F.3d at 1065, the appellant was convicted of a felony drug trafficking offense and was sentenced to an “ ‘indeterminate period’ of not less than eight months nor more than five years.” Id. at 1065. He was paroled and deported after serving eight months. Id. Following his plea of guilty to a charge of illegal reentry to the United States, the district court applied to his base offense level a sixteen-level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A). Id. Rodriguez-Arreola challenged the increase on the grounds that the “sentence imposed” for his drug conviction was less than thirteen months. Id. at 1066. The Eighth Circuit held that the “sentence imposed” was the maximum term imposed in an indeterminate sentence. Id. at 1067; see United States v. Frias, 338 F.3d 206, 208, 212 (3d Cir.2003) (holding that the sentence imposed is the maximum term of imprisonment in an indeterminate sentence). The Guideline uses the term “sentence imposed.” U.S.S.G. § 2L1.2(b)(1)(A) & (B). Application Note (1)(a)(IV), U.S.S.G. § 2L1.2, excepts from the “sentence imposed” any portions of the sentence that were “probated, suspended, deferred, or stayed.” Application Note (1)(a)(IV), U.S.S.G. § 2L1.2, does not include parole in its list of exceptions. The plain language of the Guidelines and the authoritative commentary indicate that any portion of the sentence spent on parole shall be included in the calculation of the “sentence imposed” per U.S.S.G. § 2L1.2(b)(1). See Boudreau, 250 F.3d at 285. Mendez-Villa also contends that the felony conviction that resulted in his increased sentence was an element of the offense that should have been charged in the indictment. He acknowledges that his argument is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve the issue for Supreme Court review in light of the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). MendezVilla’s contention lacks merit. Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90, 120" }, { "docid": "23112028", "title": "", "text": "PRADO, Circuit Judge: Jose Bonilla-Mungia (“Bonilla”) pleaded guilty to being unlawfully present in the United States following deportation and was sentenced to 41 months’ imprisonment. He now appeals the sentence imposed by the district court, asserting that the court plainly erred by enhancing his sentence sixteen levels for a prior “crime of violence.” He also appeals his conviction by challenging the constitutionality of the “felony” and “aggravated felony” enhancement provisions of 8 U.S.C. § 1326(b). For the reasons stated below, we affirm Bonilla’s conviction, vacate his sentence, and remand for development of the record. I. On June 7, 2003, Bonilla pleaded guilty to being unlawfully present in the United States after being previously deported, in violation of 8 U.S.C. § 1326(a) and (b). In the presentence report (“PSR”), the probation officer recommended a base offense level of eight pursuant to the U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(a) (2002). The PSR also included a recommendation for a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) on the ground that Bonilla’s 2000 conviction for sexual battery in California was a prior “crime of violence.” After a three-level reduction for acceptance of responsibility, the probation officer recommended a sentencing range of 57 to 71 months. The district court adopted the recommendations contained in the PSR, applied a two-level downward departure for Bonilla’s cooperation with the Government, and sentenced him to 41 months’ imprisonment. Bonilla timely appealed. II. A. Bonilla argues that his conviction must be overturned because the felony and aggravated felony provisions contained in 8 U.S.C. § 1326 are unconstitutional. He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but argues that Almendarez-Torreshas been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). And, as Bonilla concedes, this court must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Hopwood v. State of" }, { "docid": "6089938", "title": "", "text": "was an “attempted theft offense,” and thus an “aggravated felony,” pursuant to 8 U.S.C. § 1326(b)(2), and 8 U.S.C. § 1101(a)(43); and (3) that the trial court erred when concluding that it lacked the authority to order a downward departure from the 16 point enhancement Garcia received for committing an aggravated felony, pursuant to Application Note 5 of U.S.S.G. § 2L1.2. III. DISCUSSION A. The District Court’s Authority to Determine the Existence and Nature of a Prior Conviction. Garcia initially argues that the district court was without authority to make the finding that his 1988 burglary conviction was an “aggravated felony” for purposes of the maximum penalty enhancement of 8 U.S.C. § 1326. He argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), a prior criminal conviction, if it increases the maximum statutory sentence, must be treated as an element of the offense, included in the indictment, and established by the government beyond a reasonable doubt. Garcia has failed to present us with any case law, nor are we aware of any, requiring that the government charge -his prior conviction in the indictment. Garcia acknowledges the direct conflict between his argument and the Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and contends that Almendarez-Torres was overruled or limited by the Supreme Court’s subsequent decision in Apprendi. We disagree. In Apprendi, the Supreme Court summarized its holding as follows: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). As the quoted passage makes clear, the Court in Apprendi held that “prior convictions” need not be charged nor submitted to a jury. Indeed, the Court made clear that Almendarez-Torres was a “narrow exception to the general rule” announced in Apprendi. Id. at 490, 120 S.Ct. 2348. This ruling preserved the prior holding in Almendarez-Torres that under 8 U.S.C." }, { "docid": "4389912", "title": "", "text": "the person of another, we conclude that the district court did not err in imposing the 16-level enhancement. We therefore AFFIRM the sentence imposed by the district court. . Vargas-Duran also contends, solely for the purpose of preserving the issue for further appeal, that the \"aggravated felony” provision of 8 U.S.C. § 1326(b)(2) is unconstitutional in the wake of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which Apprendi expressly declined to overrule. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348 (\"Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision’s validity and we need not revisit it for purposes of our decision today ....”) (footnote omitted). Thus, no further consideration is necessary. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000) (\" 'The Supreme Court has left no doubt that as a constitutionally inferior court, we are compelled to follow faithfully a directly controlling Supreme Court precedent unless and until the Supreme Court itself determines to overrule it.’ ”) (quoting Hopwood v. Texas, 84 F.3d 720, 722 (5th Cir.1996)). . These offenses are \"murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.” U.S.S.G., § 2L1.2, cmt. n. l(B)(ii). . Under the version of § 49.07 of the Texas Penal Code in effect at the time of Vargas-Duran's conviction, a defendant is guilty of a third degree felony if he or she \"by accident or mistake, while operating an aircraft, watercraft, or motor vehicle in a public place while intoxicated, by reason of that intoxication cause[d] serious bodily injury to another.” Tex. Penal Code Ann. § 49.07 (Vernon 1994). Following Vargas-Duran's conviction, § 49.07 was amended to include serious bodily injuries caused by operating" }, { "docid": "6089939", "title": "", "text": "are we aware of any, requiring that the government charge -his prior conviction in the indictment. Garcia acknowledges the direct conflict between his argument and the Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and contends that Almendarez-Torres was overruled or limited by the Supreme Court’s subsequent decision in Apprendi. We disagree. In Apprendi, the Supreme Court summarized its holding as follows: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). As the quoted passage makes clear, the Court in Apprendi held that “prior convictions” need not be charged nor submitted to a jury. Indeed, the Court made clear that Almendarez-Torres was a “narrow exception to the general rule” announced in Apprendi. Id. at 490, 120 S.Ct. 2348. This ruling preserved the prior holding in Almendarez-Torres that under 8 U.S.C. § 1326, prior convictions are a sentencing factor, not an element of the crime, and need not be charged. Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. 1219; see also Dahler v. United States, 259 F.3d 763, 765 (7th Cir.2001) (holding that Apprendi did not overrule Almendarez-Torres). Thus, under Almendarez-Torres, prior convictions need not be included in the indictment, regardless of whether the existence of the prior conviction increases the maximum term of imprisonment. Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. The trial judge did not commit error on this issue and Garcia’s Apprendi challenge to his sentence is rejected. B. Commission of an Aggravated Felony. Garcia next alleges that the court erred in finding that his 1988 Illinois conviction was an “attempted theft offense” that qualified as an “aggravated felony” for purposes of the penalty enhancement provisions of 8 U.S.C. § 1326(b)(2), and U.S.S.G. § 2L1.2(b)(l)(A). The question of what constitutes an “aggravated felony” is reviewed de novo. Solorzano-Patlan v. INS, 207 F.3d 869, 872 (7th Cir.2000). Congress, in enacting the INA, listed specific" }, { "docid": "22423766", "title": "", "text": "PER CURIAM: Teofilo Santos Rivera appeals his sentence following a guilty plea to illegal entry after deportation pursuant to 8 U.S.C. § 1326(b)(2). We review the district court’s application of the Sentencing Guidelines de novo and its factual findings for clear error. See United States v. Stevenson, 126 F.3d 662, 664 (5th Cir.1997). Rivera first contends that his sentence should be vacated' because his state felony conviction for possession of a controlled substance, which resulted in an increased sentence under 8 U.S.C. § 1326(b)(2), was an element of the offense that should have been charged in the indictment. Rivera acknowledges that his argument is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve the issue for Supreme Court review in light of the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi did not overrule Almendarez-Torres. See Apprendi, 120 S.Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000), cert. denied, - U.S. -, 121 S.Ct. 1214, 149 L.Ed.2d 126 (2001). Rivera’s argument is foreclosed. Rivera also challenges the characterization of his prior Texas conviction for cocaine possession as an “aggravated felony” offense and the concomitant sixteen-level increase in his base offense level under U.S.S.G. § 2L1.2(b)(l)(A), contending that his sentence should be reduced by the rule-of-lenity. Rivera’s constitutional claim that the rule-of-lenity is applicable is reviewed de novo. United States v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir.), cert. denied, 529 U.S. 1135, 120 S.Ct. 2017, 146 L.Ed.2d 965 (2000). In United States v. Hinojosa-Lopez, 130 F.3d 691, 692-93, 694 (5th Cir.1997), we held that a state conviction is an “aggravated felony” pursuant to § 2L1.2(b)(l)(A) if “(1) the offense was punishable under the Controlled Substances Act and (2) it was a felony” under applicable state law. Id. at 694. Rivera has not explicitly disputed that, as a matter of statutory construction, his challenge to the § 2L1.2(b)(l)(A) increase is foreclosed by Hinojosa-Lopez. See United States v. Garcia Abrego, 141 F.3d" }, { "docid": "23492974", "title": "", "text": "felony. RodriguezMontelongo asserts that § 1326(b)(2) creates a separate offense and that an element of this separate offense is a prior aggravated-felony conviction. Because the indictment did not allege a prior aggravated-felony conviction, Rodriguez-Montelongo argues that the only offense charged was that under § 1326(a). Therefore, he contends that because § 1326(a) has a maximum 2-year sentence, the district court exceeded the statutory maximum by sentencing Rodriguez-Montelongo to 41 months in prison. Rodriguez-Montelongo recognizes that in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court rejected an argument identical to the one he is making here. See id. at 235, 118 S.Ct. 1219. He contends, however, that in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court “cast serious doubt” on Almenda-rez-Torres ’s validity. See id. at 489, 120 S.Ct. 2348 (stating that “it is arguable that Almendarez-Torres was incorrectly decided”). Rodriguez-Montelongo asserts that he raises this issue here only to preserve it for possible Supreme Court review. In Almendarez-Torres, the Supreme Court held that the enhanced penalties in § 1326(b) were sentencing factors, rather than elements of separate offenses. See 523 U.S. at 235, 118 S.Ct. 1219 (“In sum, we believe that Congress intended to set forth a sentencing factor in subsection (b)(2) and not a separate criminal offense.”). The Court concluded specifically that a prior conviction need not be treated as an element of the offense, even if it increases the statutory maximum. See id. at 239-47,118 S.Ct. 1219. Although Rodriguez-Montelongo is correct that Apprendi cast doubt on the continued validity of Almendarez-Torres, it did not overrule that decision. See Ap-prendi 530 U.S. at 489-90, 120 S.Ct. 2348 (footnote omitted) (“Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Ap-prendi does not contest the decision’s validity[,] and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the" }, { "docid": "22306371", "title": "", "text": "PER CURIAM: Defendant Hector Mario Latorre Bena-vides (“Latorre”) appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York, Sterling Johnson, Jr., Judge, following his plea of guilty to unlawfully reentering the United States without the permission of the United States Attorney General, after having been deported following conviction of an aggravated felony, in violation of 8 U.S.C. § 1326. Pursuant to § 1326(b), Latorre was sentenced principally to 46 months’ imprisonment. On appeal, he contends that under the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), § 1326(b), which authorizes a prison term of up to 20 years for a person whose deportation was subsequent to a conviction for commission of an aggravated felony, must be construed as setting out an offense distinct from that set out in § 1326(a), which does not mention prior convictions and limits the term of imprisonment to two years. Latorre argues that because the indictment did not allege his prior conviction, it set forth only the elements of § 1326(a), and the maximum prison term that could lawfully have been imposed on him was thus two years. Although the judgment of conviction requires a clerical correction, we reject La-torre’s contentions and affirm. Latorre expressly recognizes that the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), “forecloses [ ]his argument” (La-torre brief on appeal at 3), and that the Supreme Court in Apprendi “declined] to overrule Almendarez-Torres ” (Latorre brief on appeal at 10); Latorre states that he has pursued this appeal simply in order to preserve his argument for review by the Supreme Court (see Latorre brief on appeal at 3). We agree that the issue raised by Latorre is squarely governed by Al-mendarez-Torres and is foreclosed. Al-mendarez-Torres held that § 1326(b) does not set out a separate offense but rather is a penalty provision with respect to a violation of § 1326(a) and merely increases the authorized prison term for an unlawfully reentering" }, { "docid": "23112029", "title": "", "text": "was a prior “crime of violence.” After a three-level reduction for acceptance of responsibility, the probation officer recommended a sentencing range of 57 to 71 months. The district court adopted the recommendations contained in the PSR, applied a two-level downward departure for Bonilla’s cooperation with the Government, and sentenced him to 41 months’ imprisonment. Bonilla timely appealed. II. A. Bonilla argues that his conviction must be overturned because the felony and aggravated felony provisions contained in 8 U.S.C. § 1326 are unconstitutional. He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but argues that Almendarez-Torreshas been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). And, as Bonilla concedes, this court must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Hopwood v. State of Texas, 84 F.3d 720, 722 (5th Cir.1996). Therefore, his constitutional challenge to § 1326(b) fails, and we affirm his conviction. B. Bonilla also argues that the district court improperly enhanced his sentence under U.S.S.G. § 2L1.2(b)(l)(A)(ii) by classifying his 2000 California conviction for sexual battery as a crime of violence. Because he failed to raise this issue in the district court, we review for plain error. The Government urges us to refrain from addressing this issue on the ground that Bonilla waived any objection to his crime-of-violence enhancement at sentencing. However, the Government did not raise this waiver argument in its brief. Rather, it addressed the merits of Bonil-la’s enhancement under a plain error standard of review. After the parties filed their briefs, we decided United States v. Calderon-Pena, 383 F.3d 254 (5th Cir.2004), which held that a defendant’s prior Texas conviction of child endangerment was not a crime of violence for sentence-enhancement purposes because it did not require the use of force as an element. Therefore, we asked the parties for supplemental briefing about," }, { "docid": "6833012", "title": "", "text": "penalty enhancement. The district court also rejected Reyes-Maya’s PSR objection and assigned one criminal history point based on his criminal mischief conviction. The district court sentenced Appellant using a total offense level of 21 and a criminal history category of V. The guideline range of imprisonment was 70 to 87 months, and the district court sentenced Appellant to 70 months’ imprisonment. Reyes-Maya now appeals his sentence. II. Reyes-Maya argues that the felony conviction that resulted in his increased sentence under 8 U.S.C. § 1326(a)(b)(2) was an offense element that should have been charged in the indictment. Reyes-Maya acknowledges that his argument is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but seeks to preserve the issue for Supreme Court review in light of the decision in Apprendi. See Bousley v. United States, 523 U.S. 614, 622-23, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)(noting that the futility of an argument at the time it should have been made is not “cause” for defaulting claim). The Court in Apprendi, while acknowledging that Almendarez-Torres may be logically inconsistent with that case, and therefore incorrectly decided, chose not to overrule that decision. Apprendi 530 U.S. at 489-90, 120 S.Ct. 2348; see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000), cert. denied, 531 U.S. 1202, 121 S.Ct. 1214, 149 L.Ed.2d 126 (2001). Ac cordingly this court remains bound by Almendarez-Torres, see Rodriguez de Quijas v. Shearson/American Express, 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1991) (stating precedent is controlling where it “has direct application in a case” even if “it appears to rest on reasons rejected in some other line of decisions.”)) and relief is denied on this ground. III. We review a district court’s inter.pretation of the Sentencing Guidelines de novo. United States v. Gadison, 8 F.3d 186,193 (5th Cir.1993). Generally, sentences for misdemeanor and petty offenses are counted in the calculation of a defendant’s criminal history score. U.S.S.G. § 4A1.2(e). However, certain offenses or offenses similar to them are excluded unless the sentence was" }, { "docid": "22067224", "title": "", "text": "qualifies as a conviction for the enumerated offense of “aggravated assault,” and therefore that Alvarez was convicted of a crime of violence under section 2L1.2(b)(l)(A)(ii). Accordingly, we hold that the district court did not err in imposing the sixteen-level sentence enhancement. B. Alvarez’s constitutional challenge is foreclosed Alvarez contends that the sentence imposed by the district court is unconstitutional because it exceeds the statutory maximum sentence allowed for the § 1326(a) offense charged in his indictment. Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), he challenges the constitutionality of § 1326(b)’s treatment of his prior felony conviction as a sentencing factor rather than as an element of the offense that must be found by the jury. Alvarez’s challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), in which the Supreme Court held that the treatment of prior convictions as sentencing factors under § 1326(b) was constitutional. This court has repeatedly rejected arguments like the one made by Alvarez and has held that Almendarez-Torres remains binding despite Apprendi. See, e.g, United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.2005); United States v. Mendez-Villa, 346 F.3d 568, 570-71 (5th Cir.2003). Alvarez concedes that his argument is foreclosed and raises the argument to preserve it for further review. IV. CONCLUSION For the reasons stated above, the sentence imposed by the district court is AFFIRMED. AFFIRMED. . The commentary to § 2L1.2 is binding and is equivalent in force to the Guideline language, itself, as long as the language and the commentary are not inconsistent. United States v. Rayo-Valdez, 302 F.3d 314, 318 n. 5 (5th Cir.2002). . Because we conclude that Alvarez's conviction qualifies as a conviction for the enumerated offense of \"aggravated assault,” we need not decide whether his offense has as an element the use, attempted use, or threatened use of physical force against the person of another. See U.S.S.G. § 2L1.2 cmt. n.l(B)(iii)." }, { "docid": "22666701", "title": "", "text": "8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional on their face and as applied in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). According to Garza-Lopez, the “felony” and - “aggravated felony” provisions found in these sections are essential elements of the offense that must be pled in the indictment and proved beyond a reasonable doubt, not sentencing enhancement factors that a judge should determine. He notes that in Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court rejected this argument, holding that “Congress intended to set forth a sentencing factor in subsection (b)(2) [of 8 U.S.C. § 1326] and not a separate criminal offense.” Nevertheless, he argues that in light of Apprendi, there is reason to think that Almendarez-Torres was wrongly decided. While Garza-Lopez thinks there is reason to believe Almendarez-Torres was wrongly decided, he admits in his brief that his argument that 8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional is foreclosed in this circuit by Almendarez-Torres. He then states that he is simply raising this argument on appeal to preserve it for possible review by the Supreme Court. Because Garza-Lopez made no objection to the alleged constitutional error below, we review it for plain error. United States v. Knowles, 29 F.3d 947, 951 (5th Cir.1994). This court has held that “[i]t is self-evident that basing a conviction on an unconstitutional statute is both ‘plain’ and ‘error’ ....” Id. at 951. Garza-Lopez’s argument that §§ 1326(b)(1) and (2) are unconstitutional after Apprendi fails in light of Almendarez-Torres and Fifth Circuit precedent. As Garza-Lopez readily admits, in Almendarez-Torres, the Supreme Court effectively rejected his argument. See Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. Furthermore, Apprendi did not overrule Almendarez-Torres. Instead, the Supreme Court stated in Apprendi that “we need not revisit [Almendarez-Torres] for purposes of our decision today to tréat the case as a narrow exception to the general rule we recalled at the outset.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. This court has repeatedly rejected arguments like the" }, { "docid": "3309208", "title": "", "text": "low end to 292 months in prison on the gun charge, and to a concurrent 210 months on the drug charge. Peltier appeals his sentence. The Government does not cross-appeal. We affirm. Peltier first contends the earlier convictions used to enhance his gun sentence should have been submitted to the jury, and the failure to do so violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi holds, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Peltier’s contention fails because Apprendi specifically excepts earlier convictions from the rule. We also reject Peltier’s assertion that Apprendi effectively overruled Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (refusing to interpret a statute to make the fact of an earlier conviction an element of the crime, and thus a fact question for the jury). Although the Court in Apprendi stated it was “arguable that Almendarez-Torres was incorrectly decided,” the Court specifically refused to overrule the decision. Id. at 489-90, 118 S.Ct. 1219. We must apply Supreme Court precedent as it stands, and that precedent does not require that either the existence or substance of Peltier’s earlier convictions be submitted to a jury and proven beyond a reasonable doubt. United States v. Davis, 260 F.3d 965, 969 (8th Cir.2001), petition for cert. filed, No. 01-7268 (U.S. Nov. 9, 2001). Peltier next asserts the district court committed error in sentencing him as a career offender under U.S.S.G. § 4B1.1. Because Peltier was at least eighteen when he committed the drug offense, he is a career offender if he has at least two earlier felony convictions for crimes of violence. We have already held that burglary of a commercial building is a crime of violence within the meaning of § 4B1.2(a), which defines crime of violence for purposes of the career offender and criminal history guidelines. United States v. Hascall, 76" }, { "docid": "1408637", "title": "", "text": "§ 2L1.2, excepts from the “sentence imposed” any portions of the sentence that were “probated, suspended, deferred, or stayed.” Application Note (1)(a)(IV), U.S.S.G. § 2L1.2, does not include parole in its list of exceptions. The plain language of the Guidelines and the authoritative commentary indicate that any portion of the sentence spent on parole shall be included in the calculation of the “sentence imposed” per U.S.S.G. § 2L1.2(b)(1). See Boudreau, 250 F.3d at 285. Mendez-Villa also contends that the felony conviction that resulted in his increased sentence was an element of the offense that should have been charged in the indictment. He acknowledges that his argument is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve the issue for Supreme Court review in light of the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). MendezVilla’s contention lacks merit. Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). The judgment of the district court is AFFIRMED." }, { "docid": "22458360", "title": "", "text": "At his sentencing hearing, Ochoa-Gaytan conceded that he had been deported after having been convicted of an aggravated felony. The district court therefore sentenced Ochoa-Gaytan to more than two years imprisonment for his illegal reentry. Ochoa-Gaytan argues that 8 U.S.C. § 1326(b)(2) is a substantive offense rather than a sentencing factor. Consequently, he argues that he should have been exposed to no more than two years imprisonment because his indictment did not allege that he had previously been convicted, the issue was not presented to the jury, and the government did not prove beyond a reasonable doubt that he had been convicted of an aggravated felony. He argues that the district court’s imposition of a sixty-three month sentence was erroneous under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 120 S.Ct. at 2362-63. As the government correctly notes, our decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir. 2000), which was filed after Ochoa-Gaytan filed his supplemental brief that addressed the effect of Apprendi on his case, forecloses Ochoa-Gaytan’s argument. In Pacheco-Zepeda, we considered the exact issue raised here. There, we considered the effect of Apprendi on Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Almendarez-Torres held that 8 U.S.C. § 1326(b)(2)-the statutory provision which was the basis for Ochoa-Gaytan’s enhanced sentence-“simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime.” Id. at 226, 118 S.Ct. 1219. As a result, recidivism is not an element of the crime defined by § 1326 and so need not be charged in the indictment and proved beyond a reasonable doubt. Id. at 239, 118 S.Ct. 1219. Ochoa-Gaytan argues that A-pprendi overrules Almendarez-Torres. However, in Paeheco-Zepeda, we held that the Apprendi Court “unmistakably carved out an exception for ‘prior convictions’ that specifically preserved the" } ]

[ { "docid": "17751701", "title": "", "text": "to the steering course of a steamer under way which he is unable to see by reason of the density of fog and whose fog signals are heard forward of the beam of his own vessel. Because of that error of judgment, the Ramona’s captain failed to stop her until he realized that there was imminent danger of a collision, when it was too late to avoid it. The Ramona is a wood steamer 195 feet long, and going at full speed makes 10 or 11 knots per hour. On the night of the accident she was on her regular run from Vancouver to Seattle, and reached Pt. Wilson at about 1:32 a. m., by her own time, which appears to have been the same as the engine room time of the Tremont. At Pt. Wilson her speed was checked, and then at 1:35 she went ahead towards Marrowstone Point, and ran at full speed for 18 minutes, during which period she was in a dense fog, and sounding fog signals continuously. On hearing the Tremont’s signals the Ramona’s speed was reduced to about five or six knots per hour, and at that rate she continued on her course five minutes. Then realizing that there was danger of a collision, her captain ordered the engines reversed and to work astern at full speed, which order was promptly obeyed by the engineer, but without perceptible effect before the impact of the collision. I do not find the Ramona to have been in fault for going at an excessive rate of speed previous to the time of hearing and locating the Tremont’s fog signal, but in view of all the circumstances, to have complied with the requirements of article 16 of the rules prescribed by Congress to avoid collisions in inland navigation, the order to reduce speed given at 1:53 a. m. should have been promptly followed by an order to stop, and by giving the inquiry signals prescribed by that article. U. S. Comp. St. 1901, p. 2880. I therefore find that the Ramona was in fault for nonobservance of article" } ]

[ { "docid": "8116970", "title": "", "text": "sank at once. There can be no doubt therefore that the Gatzert was running at a considerable rate of speed, and with great force, so that a collision with another craft would be necessarily attended with great injury and damage. It is a rule of navigation that: “A vessel in a dense fog is bound to observe unusual caution, and to maintain only such a rate of speed as would enable her to come to a standstill by reversing her engines at full speed before she could collide with a vessel winch she could see through the fog.” The Belgian King, 125 Fed. 869, 876, 60 C. C. A. 451. This case was decided by the Court of Appeals in this circuit, and is binding upon this court. Other adjudications, however, are to the same purpose: The State of Alabama (D. C.) 17 Red. 84-7; The Bolivia, 49 Fed. 169, 1 C. C. A. 221; The Michigan (D. C.) 63 Fed. 295; The H. F. Dimock, 77 Fed. 226, 23 C. C. A. 123; The Kentucky (D. C.) 148 Fed. 500. The rule is both reasonable and wholesome, and especially does it have application to navigation upon the waters of a narrow channel like that of the Willamette river from Portland to its mouth, where many vessels are plying constantly. The commander of the Gatzert is manifestly chargeable with grave negligence in permitting his boat to be navigated at the rate of speed she was running at the time. It was impossible for him to have brought his vessel to a stop in so short a distance as he was able to sight another vessel in the thick fog then prevailing. As it was, her engines were promptly reversed, but it seemed to check her but slightly before she collided with the dredge. Prudent navigation under the rule would have prevented the accident. ' The next inquiry is: Was the dredge guilty of negligence in not ringing her bell as required by the government regulations? Some question was made touching the position of the bell as not well calculated to" }, { "docid": "19074685", "title": "", "text": "Nantucket Shoals was held excessive; and in The Colorado, 91 U. S. 692, 23 L. Ed. 379, “five or six” miles on Eake Huron was condemned as excessive. In The Nacdochee, 137 U. S. 330, 11 Sup. Ct. 122, 34 L. Ed. 687, a steamship was held responsible for a collision on the high seas when proceeding in a fog at the rate of 7 knots per hour. In the opinion in that .case Mr. Justice Blatchford said: “She was bound, therefore, to observe unusual caution, and to maintain only such a rate of speed as would enable her to come to a standstill, by reversing her engines at full speed, before she should collide with a vessel which she should see through the fog.” Similar cases are: The H. F. Dimock, 77 Fed. 226, 23 C. C. A. 123; The Louisburg, 75 Fed. 424, 21 C. C. A. 424; The Kentucky (D. C.) 148 Fed. 500; Pennell v. United States (D. C.) 162 Fed. 64; The Tennessee (D. C.) 181 Fed. 287; The Catalonia (D. C.) 43 Fed. 396; The Bailey Gatzert (D. C.) 170 Fed. 101; The Manistee, 7 Biss. 35, Fed. Cas. No. 9,028; The Eleanora, 17 Blatchf. 88, Fed. Cas. No. 4,335. The Transit was a vessel broad of beam, 325 feet long, and owing to the construction of her engines she cpuld not, when proceeding at a speed of seven knots, be stopped in less than 800 or 900 feet. She did not answer her rudder very quickly. Her highest speed was 11 .knots. The contention is made that at a speed of less than 7 knots she would have lost steerageway, but this is not sustained by the testimony. The master’s testimony was as follows: “Q. I am asking you about the lowest speed you can keep steerageway. A. I have never found out going on the reversed bell. Q. As a matter of fact, can’t you maintain steerageway at three knots? A. No, sir. Q. Why not? A. On account of one rudder. Q. What does she need, more rudders? A. One rudder" }, { "docid": "23002849", "title": "", "text": "time to avoid her is unlawful, the Sagamore must be condemned for a violation of article 16. In The Umbria, 166 U. S. 404, 417, 17 Sup. Ct. 610, 615 [41 L. Ed. 1053] it is said: “The general consensus of opinion in this country is to the effect that a steamer is bound to use only such precautions as will enable her to stop in time to avoid a collision, after the approaching vessel comes in sight, provided such approaching vessel is herself going at the moderate speed required by law. In a dense fog this might require both vessels to come to a standstill, until the course of each was definitely ascertained,” etc. In The Chattahoochee, 173 U. S. 510, 548, 19 Sup. Ct. 491, 494 [43 L. Ed. 801]: “It has been said by this court, in respect to steamers, that they are bound to reduce their speed to such a rate as will enable them to stop in time to avoid a collision after an approaching vessel comes in sight, provided such approaching vessel is herself going at the moderate speed required by law.” In The Nacoochee, 137 U. S. 330, 339, 11 Sup. Ct. 122, 125 [34 L. Ed. 687], the statement is that the steamer— “was bound * * * to maintain only such a rate of speed as would enable her to come to a standstill, by reversing her engines at full speed, before she should collide with a vessel which she should see through, the-fog.” The latest expression of an English court applying article 16 that has been brought to our attention is in The Counsellor, L. R. Prob. Div. 1913, pp. 70, 72, 73: “I think, a very fair rule to make is this, and it is one that has been suggested to me by one of tbe Elder Brethren: You ought not to go so fast in a fog that you eamiot pull up within the distance that you can see. If you cannot see more than 400 feet, you ought to be going a.t such a speed that you" }, { "docid": "20980989", "title": "", "text": "was sounded, her engine was put full speed astern and three blasts were sounded on the whistle to indicate backing. According to the captain’s estimate, from one to three minutes later the Octo New York was sighted visually, approaching through the fog, and within seconds was in collision with the Verdón which was either dead in the water or making some stern-way. The Oteo New York drove her stem into the starboard bow of the Verdón, penetrating a distance of six or seven feet. The Oteo New York had been proceeding south, and when her captain heard the fog signal from the Verdón he stopped her engines, and after ascertaining that the signal had been heard from forward of the beam, he proceeded ahead at different speeds and not just under a slow bell. Shortly after passing buoy 11, at which the Oteo New York had eased to the right, she heard a long signal and the three blast signal, and observed the foremast of a vessel on her port bow on a crossing course. She went full astern on her two engines, and about 15 seconds later, at approximately 0657, the collision occurred. There can be no doubt that the Verdón was in violation of Article 29 of the Inland Rules of the Road, 33 U.S.C. A. § 221, in her failure to have a lookout. It is not merely a question of a failure to have a bow lookout, see United States v. The Adrastus, 2 Cir., 190 F.2d 883, 886, but a failure to have any lookout whatever. The captain was conning the ship and operating the radar, the mate was helping out generally and also observing the radar, and the helmsman, of course, was steering. None of these was so free of other duties as to qualify as a “free and single-minded lookout.” The Koyei Maru, 9 Cir., 96 F.2d 652, 654; The Knoxville City, 9 Cir., 112 F.2d 223, 226. A lookout should have no other duties. The Genesee Chief, 12 How. 443, 462, 13 L.Ed. 1058; Chamberlain v. Ward, 21 How. 548, 571, 16" }, { "docid": "22383414", "title": "", "text": "other had been definitely ascertained. But in cases of this kind much depends upon the density of the fog, and something must be left to the judgment and discretion of the master. Precautions, which might be indispensable in a fog so thick that vessels are invisible at a distance of three hundred feet, might become unnecessary and even burdensome if they can be seen at a distance of a thousand feet. It was said in the early case of The Batavier, 9 Moore P. C. 286, that “ at whatever rate she was going, if going at such a rate as made it dangerous to any craft which she ought to have seen, and might have seen, she had no right to go at that rate.” This language, was quoted with approval in The Colorado, 91 U. S. 692, 703. So, too, in the case of The Great Eastern, Browning & Lushington, 287, it was said that “ their lordships are of opinion that it is the duty of the steamer to proceed only at such' a rate of speed as will enable her, after discovering a vessel meeting her, to stop and reverse her engines in sufficient time to prevent any collision from taking place.” Similar language was used by this court in the case of The Nacoochee, 137 U. S. 330, 339. The general consensus of opinion in this country is to the effect that a steamer is bound to use only such precautions as will enable her to stop in time to avoid a collision, after the approaching vessel comes in sight, provided such approaching vessel is herself going at the moderate speed required by law. In a dense fog this might require both vessels to come to a standstill, until the course of each was definitely ascertained,. In a lighter fog it might authorize them to keep their engines in sufficient motion to preserve their steerageway. The fog in this case was what is termed intermittent; sometimes dense; sometimes light; occasionally lifting so much as to permit other vessels to be seen, and again shutting down" }, { "docid": "10012704", "title": "", "text": "U. S. 125, 133, 22 L. Ed. 148. A rule applicable to such a situation was to proceed at such a rate of speed as would enable her after discovering a vessel through the fog to have stopped and reversed her engines in time to prevent a collision. The Great Eastern, Brown. & L. 287, 291; The Nacoochee, 137 U. S. 330, 339, 11 Sup. Ct. 122, 34 L. Ed. 687; The Umbria, 166 U. S. 404, 417, 17 Sup. Ct. 610, 41 L. Ed. 1053; The Belgian King, 125 Fed. 869, 876, 60 C. C. A. 451. This she did not do; and she was therefore clearly at fault. Was the dredge also in fault? A dredge lawfully fixed in a channel for improving it is to be considered as a vessel at anchor, and is under obligation to use -the same precautions to guard against collisions that a vessel at anchor is in respect to the exhibition of lights, maintaining a watch, and measures calculated to make its situation known. Spencer on Marine Collisions, §'’118. American Dredging Co. v. The Bedowin, 1 Fed. Cas. No. 299. The Virginia Ehrman and The Agnese, 97 U. S. 309, 24 L. Ed. 890. The Portland was lawfully engaged in dredging the channel at the point of collision. She- was therefore to be considered as a vessel at anchor. “A vessel when at anchor shall, at intervals of not more than one minute, ring the bell rapidly for five seconds.” Article 15, cl. “d,” Act June 7, 1897 (30 Stat. 96, 99). The dredge had a bell, but whether it was rung rapidly' for about five seconds at intervals of not more than one minute during the fog immediately' preceding the collision was a question of fact upon which the evidence was conflicting. The testimony upon this question was furnished by 16 witnesses — 4 by deposition, and 12 by testimony in open court. The-court reviewed this testimony, and said: “I tliink there can be no question that the bell on the dredge was rung at proper intervals during the approach of" }, { "docid": "10012703", "title": "", "text": "Upon Certain Harbors, Rivers, and Inland Waters of the United States), provides as follows: “Every vessel shall, in a fog, mist, falling snow, or heavy rain storms, go at a moderate speed, having careful regard to the existing circumstances and conditions.” 30 Stat. 99, c. 4 (U. S. Comp. St. 1901, p. 2880). The moderate rate of speed required by the rules must depend upon the circumstances of the case. What might be considered as moderate speed in unfrequented waters might be immoderate in a situation where the presence of other vessels might reasonably be expected. Spencer on Marine Collisions, § 44, and cases there cited. The channel of the Willamette river between the Columbia river and the city of Portland carries a large commerce, and the vessels engaged in its transportation are to be expected at all points and at all hours in passing up or down the river. It was therefore the duty of the Bgiley Gatzert to have exercised the utmost caution in navigating this channel in a fog. The Pennsylvania, 86 U. S. 125, 133, 22 L. Ed. 148. A rule applicable to such a situation was to proceed at such a rate of speed as would enable her after discovering a vessel through the fog to have stopped and reversed her engines in time to prevent a collision. The Great Eastern, Brown. & L. 287, 291; The Nacoochee, 137 U. S. 330, 339, 11 Sup. Ct. 122, 34 L. Ed. 687; The Umbria, 166 U. S. 404, 417, 17 Sup. Ct. 610, 41 L. Ed. 1053; The Belgian King, 125 Fed. 869, 876, 60 C. C. A. 451. This she did not do; and she was therefore clearly at fault. Was the dredge also in fault? A dredge lawfully fixed in a channel for improving it is to be considered as a vessel at anchor, and is under obligation to use -the same precautions to guard against collisions that a vessel at anchor is in respect to the exhibition of lights, maintaining a watch, and measures calculated to make its situation known. Spencer on Marine" }, { "docid": "9838661", "title": "", "text": "of that single passing whistle, and without being able to see the approaching vessel, she changed her course by putting her wheel hard a-starboard, and kept her speed. In a moment the top of the spar of the Becker, in tow of the Roby, came in sight, and a second, or so later the top of the Roby’s wheelhouse was seen. In this' situation she was put under full speed in the desperate hope that the seeming course of the Roby could be crossed before the latter could reach the point of intersection. The 1 effort failed. The Roby’s bow struck the Florida about amidship, cutting very deeply into her hull, and penetrating her cargo. Upon hearing the whistle of the Roby so near, and apparently right ahead, prudent navigation required that she should at once stop and reverse, until the location and course could be ascertained with certainty by either sound or sight. The City of New York, 147 U. S. 72, 84, 13 Sup. Ct. 211, 37 L. Ed. 84; The Umbria, 166 U. S. 404, 417, 17 Sup. Ct. 610, 41 L. Ed. 1053; The Fountain City, 10 C. C. A. 278, 62 Fed. 87, 22 U. S. App. 301, 309; The North Star, 10 C. C. A. 262, 62 Fed. 71, 22 U. S. App. 242. The fog was dense. The vessels appeared to be very near and to be drawing nearer. The only indication of the location and course of the Roby was the apparent bearing of ¿ single .passing whistle. Upon this uncertain basis for an opinion, the Florida maintained her speed and put her helm hard a-starboard. In the case of The New York, cited above, the court, in speaking of the duty of a steamer in a fog upon hearing the fog horn of an approaching vessel, said: “Upon hearing the fog horn of the bark only one point on her starboard bow, the officer in charge should at once have checked- her speed, and, if the sound indicated that the approaching vessel was near, should have stopped or reversed until the" }, { "docid": "14747035", "title": "", "text": "vessel has long been considered a posi tive breach of the statute, which puts her in wrong. Martello, 153 U. S. 64, 14 Sup. Ct. 723, 38 L. Ed. 637; The Pennsylvania, 19 Wall. 125, 22 L. Ed. 148; Baltimore Steampacket Co. v. Coastwise Transp. Co. (D. C.) 139 Fed. 777; Richelieu Nav. Co. v. Boston Marine Co., 136 U. S. 408, 10 Sup. Ct. 934, 34 L. Ed. 398; Yang-Tsze Ins. Ass’n v. Furness Withy & Co., 215 Fed. 859, 132 C. C. A. 201. No whistle was blown by the No. 15 until she was in the jaws of collision. The probability of the phenomenon of a bank of vapor so large and dense as to hide a vessel and to require signals was recognized in the Belfast (D. C.) 226 Fed. 362. We think, also, that the No. 15 was going at an excessive speed, and was at fault for failing to stop when passing through this bank of vapor. She was bound to observe this unusual condition, and to maintain such a rate of speed as would enable her to come to a standstill, by reversing her engines at full speed before she would collide with the vessel which she could not see through the vapor. The Nacoochee, 137 U. S. 330, 11 Sup. Ct. 122, 34 L. Ed. 687; The Umbria, 166 U. S. 404, 17 Sup. Ct. 610, 41 L. Ed. 1053. The Taylor is likewise charged with knowledge of the weather conditions and the bank of vapor. Her opportunity to observe these conditions was as good as the No. 15. She was proceeding between 9 and 10 knots, and blew no fog signals. She had altered her course when about 5 feet off the pier ends to make the slip, and in close proximity to the bank of vapor, which she claims obscured her view of the No. 15. The Taylor was under obligation to observe the fog rule, not only when she was actually enveloped in fog or vapor, but also when she was so near to it that it was necessary" }, { "docid": "5943908", "title": "", "text": "starboard, nor were there any other alarm signals to indicate that the Hortensius did not understand the one-blast signal sounded. Again, we think the Hortensius should have slowed or stopped and reversed her engines before “a few seconds before the collision,” when the vessels were one ship’s length away or less. It has long been settled that, if a vessel is approaching another vessel which has disregarded her signals, or whose position or movements are uncertain, she is bound to stop until her course be ascertained for a certainty. The New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126. A vessel which has signaled by two blasts that she intends passing to starboard instead of to port, and gets no assenting response, is in duty bound to stop, reverse, and, if necessary, come to a standstill, until the course of the other vessel has been ascertained with certainty, and the risk of collision removed. Chamberlain v. Ward, 21 How. 548, 16 L. Ed. 211; Border Line Transp. Co. v. Canadian Pac. Ry. Co. (D. C.) 262 Fed. 989. The officer in charge of the navigation of the Munaires was in doubt for at least ten minutes before the collision as to the navigation of the Hortensius. She did not reduce her speed in time, nor port her helm, but continued on her course for about five minutes. It was the duty of the Munaires’ navigator, when so in doubt, to slow or stop and reverse her engines under the circumstances which created the doubt and which then confronted him. The New York, 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126; The Albert Dumois, 177 U. S. 240, 20 Sup. Ct. 595, 44 L. Ed. 751; The Portia, 64 Fed. 811, 12 C. C. A. 427. Jaekson was serving as a quartermaster on the Munaires, but when the vessels collided he was stationed at the after davit along with the third assistant engineer, whom he had asked to assist him. The situation appeared serious, and it was expected that the vessel would" }, { "docid": "19074684", "title": "", "text": "steered going slower—could not have been steered straight. And two other witnesses testify that, in their opinion, she could not have been navigated with safety and kept under command at a less' rate of speed than seven miles an hour. These, however, are but expressions of opinion based upon no facts. They are of little worth. And even if it were true that such a rate was necessary for safe steerage, it would not justify driving the steamer through so dense a fog along a route so much frequented, and when the probability of encountering other vessels was so great.” Similar views as to the speed of vessels in a fog have been, expressed by the Supreme Court in other cases. In The Martello, 153 U. S. 64, 14 Sup. Ct. 723, 38 L. Ed. 637, a speed of 5% to 6 miles an hour in going out of the harbor of New York was held excessive. In The Chattahooche, 173 U. S. 540, 19 Sup. Ct. 491, 43 L. Ed. 801, seven miles off Nantucket Shoals was held excessive; and in The Colorado, 91 U. S. 692, 23 L. Ed. 379, “five or six” miles on Eake Huron was condemned as excessive. In The Nacdochee, 137 U. S. 330, 11 Sup. Ct. 122, 34 L. Ed. 687, a steamship was held responsible for a collision on the high seas when proceeding in a fog at the rate of 7 knots per hour. In the opinion in that .case Mr. Justice Blatchford said: “She was bound, therefore, to observe unusual caution, and to maintain only such a rate of speed as would enable her to come to a standstill, by reversing her engines at full speed, before she should collide with a vessel which she should see through the fog.” Similar cases are: The H. F. Dimock, 77 Fed. 226, 23 C. C. A. 123; The Louisburg, 75 Fed. 424, 21 C. C. A. 424; The Kentucky (D. C.) 148 Fed. 500; Pennell v. United States (D. C.) 162 Fed. 64; The Tennessee (D. C.) 181 Fed. 287; The Catalonia" }, { "docid": "9793642", "title": "", "text": "the evidence under consideration, I find that the schooner was anchored out of the channel where she had a right to lie; that she swung around with the tide and was tailing up stream; that she was not in fault through neglect to sound the fog bell, but that it was repeatedly sounded both before and after the first blast of the steamship’s whistle, and again more violently after the second blast; that the steamship had gone out of the channel in a dense fog into a known anchorage, and was endeavoring to locate her position by refer ence to the Fourteen-Foot Fight fog horn; that the wheel was put hard aport, not because of being misled by the sound of the small bell in the aft part of the schooner, but before her pilot and master knew of the presence of the schooner, and she struck the Van Brunt before she could be stopped. These facts being established, the law of the case is clear. The steamship, being off the channel and pn the anchorage, was not going at such moderate speed as to be able to stop when the schooner was observed. The Ansaldo Savoia (D. C.) 276 Fed. 723; The Bailey Gatzert, 179 Fed. 44, 102 C. C. A. 612; The Nacoochee, 137 U. S. 330, 11 Sup. Ct. 122, 34 L. Ed. 687. _ _ [3] The presumption, where a moving vessel comes into collision with one at anchor in .a fog, and where there is no evidence of negligence on the part of the anchored vessel, is, by the well-established rule, against the moving vessel. The Umbria, 166 U. S. 404, 17 Sup. Ct. 610, 41 L. Ed. 1053; The Oregon, 158 U. S. 186, 15 Sup. Ct. 804, 39 F. Ed. 943; The Newburgh, 130 Fed. 321, 64 C. C. A. 567; The Amiral Cecille (D. C.) 134 Fed. 673. The evidence on the part of the Cananova is not such as to overcome the presumption. In my opinion, this is a case of sole fault on the part of the Cananova, and not" }, { "docid": "8116969", "title": "", "text": "Whether the commander gave it or not, however, the boat was at that time speeding up, and the commander should have been apprised o'f it by the quiver or motion of the boat, and he allowed her to consume in that way. The boat was therefore increasing her velocity from half speed to full speed ahead, and was probably running at a rale of from 10 to 12 miles per hour, with the current of the stream in her favor. When the dredge was sighted, the engine was reversed, and was so reversed when the collision took place, so that it must he that the speed of the vessel was checked somewhat. The speed, however, thus checked, was sufficient by the impact with the dredge to drive her bow into the dredge for a distance of from 8 to 14 feet, encountering on the way a number of heavy timbers, ranging in size from 12x12 inches to 14x14. These were broken and parted, causing a rent in the stern of the dredge, from which she sank at once. There can be no doubt therefore that the Gatzert was running at a considerable rate of speed, and with great force, so that a collision with another craft would be necessarily attended with great injury and damage. It is a rule of navigation that: “A vessel in a dense fog is bound to observe unusual caution, and to maintain only such a rate of speed as would enable her to come to a standstill by reversing her engines at full speed before she could collide with a vessel winch she could see through the fog.” The Belgian King, 125 Fed. 869, 876, 60 C. C. A. 451. This case was decided by the Court of Appeals in this circuit, and is binding upon this court. Other adjudications, however, are to the same purpose: The State of Alabama (D. C.) 17 Red. 84-7; The Bolivia, 49 Fed. 169, 1 C. C. A. 221; The Michigan (D. C.) 63 Fed. 295; The H. F. Dimock, 77 Fed. 226, 23 C. C. A. 123; The" }, { "docid": "23002864", "title": "", "text": "Fed. 42, 49, 101 C. C. A. 170 (C. C. A. 7th Cir.), citing Casement v. Brown, 148 U. S. 615, 13 Sup. Ct. 672, 37 L. Ed. 582, and The Victory v. The Plymothian, 168 U. S. 410, 426, 18 Sup. Ct. 149, 42 L. Ed. 519, cases which seem to support the general proposition that a vessel is entitled to presume that another vessel will act- lawfully, though these are not fog cases. In The Michigan (D. C.) 63 Fed. 295, the court applied the following rule: “Moderate speed in a fog is that rate which will permit a steamer to stop, after hearing a fog signal, in time to avoid the vessel which has complied with the law in giving It.” The judgment was reversed in 63 Fed. 280, 11 C. C. A. 187, though without express comment on this rule. In Marsden on Collisions, p. 37, it is said: “And from the English decisions it appears that the rate must be regulated by the thickness of the fog, and the probability of falling in with other ships, rather than the supposed distance at which a ham or bell would be audible.” As a practical matter, however, there is a difference between the general probability that vessels may he in the vicinity and the special probability of meeting a vessel whose presence is known though her exact location is not; and this is recognized by article 16 in its provision for stopping the engines, etc., upon hearing a fog signal forward of the beam. The impracticability of a rule that a steamer may go at a rate such as will enable her to stop within an assumed distance at which she may, under favorable circumstances, expect to- hear a fog horn or a steam whistle if blown, is emphasized in The Hansa, 5 Ben. 501, 535, et seq., Fed. Cas. No. 6,037. While it is apparent that the discretion of the navigator as to' speed will be affected by reliance upon the performance of other vessels of their statutory duty to signal in a fog, thus giving" }, { "docid": "9933602", "title": "", "text": "HOUGH, Circuit Judge (after stating the facts as above). The usual navigation rules apply to this matter, inasmuch as steamer and pilot boat had not in effect agreed to navigate with reference to the latter's peculiar occupation. It is not a case of special circumstances, as in The Monterey, 161 Fed. 95, 88 C. C. A. 259. Each vessel heard the other’s fog whistles forward of the beam, when neither had ascertained the other’s position, and each was therefore bound to “stop her engines and then navigate with caution until danger of collision (was) over.’’ And cautious navigation meant that such speed should be maintained as would enable each vessel to stop within the distance that the other could be seen. The fog density is not certain, yet the uncertainty has a bearing upon the case. There were but two men on the New jersey whose business it was to pay attention to the navigation of that vessel; i. e., the mate at the wheel and the pilot at his side, who was acting as lookout. Both substantially begin their story of collision with the whistling buoy abeam; yet one says he saw it at a distance of not over 150 feet on the starboard side, while the other also saw it with the same bearing at a distance of a quarter of a mile; and both maintain that the Manchioneal came into sight three points on their starboard bow, and from 1,200 to 1,500 feet away. Their story of collision is that the steamer maintained her course until she was about two points forward of their beam, and then turned at high speed and ran down the New Jersey with a right angled blow, before she could escape, even with the assistance of a hard astarboard wheel, and a hook-up bell. This story of collision is physically impossible. The Manchioneal was of no peculiar construction, and, to turn the eight points necessary to produce the collision asserted by these witnesses, an ordinary vessel of her size would advance considerably more than 1,000 feet in the process of swinging eight" }, { "docid": "23002850", "title": "", "text": "such approaching vessel is herself going at the moderate speed required by law.” In The Nacoochee, 137 U. S. 330, 339, 11 Sup. Ct. 122, 125 [34 L. Ed. 687], the statement is that the steamer— “was bound * * * to maintain only such a rate of speed as would enable her to come to a standstill, by reversing her engines at full speed, before she should collide with a vessel which she should see through, the-fog.” The latest expression of an English court applying article 16 that has been brought to our attention is in The Counsellor, L. R. Prob. Div. 1913, pp. 70, 72, 73: “I think, a very fair rule to make is this, and it is one that has been suggested to me by one of tbe Elder Brethren: You ought not to go so fast in a fog that you eamiot pull up within the distance that you can see. If you cannot see more than 400 feet, you ought to be going a.t such a speed that you can pull up. If you are going in a fog at such a speed that you cannot pull up in time if anything requires you to pull up, you are going too fast. If you cannot retain steerageway at such a speed, then you should manage by alternately stopping and putting the engines ahead. In my opinion 4% knots was, in the circumstances of the case, too great a speed for the Counsellor to proceed at.” See, also, Marsden’s Collisions at Sea (6th Ed.) p. 374; Hayne’s Rule of the Road at Sea, pp. 18, 64; The Michigan, 63 Fed. 280, 287, 11 C. C. A. 187; The Nymphaea (D. C.) 84 Fed. 711, 715; The Newport News, 105 Fed. 389, 44 C. C. A. 541; The West Brooklyn (D. C.) 106 Fed. 751, 752; The George W. Roby, 111 Fed. 601, 610, 49 C. C. A. 481; The Belgian King, 125 Fed. 869, 60 C. C. A. 451; The Georgia (D. C.) 208 Fed. 635; The Kentucky (D. C.) 148 Fed. 500, 502; The" }, { "docid": "9838662", "title": "", "text": "U. S. 404, 417, 17 Sup. Ct. 610, 41 L. Ed. 1053; The Fountain City, 10 C. C. A. 278, 62 Fed. 87, 22 U. S. App. 301, 309; The North Star, 10 C. C. A. 262, 62 Fed. 71, 22 U. S. App. 242. The fog was dense. The vessels appeared to be very near and to be drawing nearer. The only indication of the location and course of the Roby was the apparent bearing of ¿ single .passing whistle. Upon this uncertain basis for an opinion, the Florida maintained her speed and put her helm hard a-starboard. In the case of The New York, cited above, the court, in speaking of the duty of a steamer in a fog upon hearing the fog horn of an approaching vessel, said: “Upon hearing the fog horn of the bark only one point on her starboard bow, the officer in charge should at once have checked- her speed, and, if the sound indicated that the approaching vessel was near, should have stopped or reversed until the sound was definitely located or the vessels came in sight of each other. Indeed, upon the testimony in this case, it is open to doubt whether, if the engine had been at once stopped, the steamer would have come to a standstill before .she had crossed the course of the bark. There is no such certainty of the exact position of a horn blown in a fog as will justify a steamer in speculating upon the probability of avoiding it by a change of the helm, without taking the additional precaution of stopping until its location is definitely ascertained.” The Hypodame, 6 Wall. 216, 18 L. Ed. 794; The Kirby Hall, 8 Prob. Div. 71; The Sea Gull, 23 Wall. 165, 23 L. Ed. 90; The Ceto, 6 Asp. 479, 14 App. Cas. 670. We think this is j’ust as applicable to a fog whistle as to a fog horn, and as applicable to two steamers in a fog as to a steamer and sailing vessel. The observation of the court in that case was" }, { "docid": "12468300", "title": "", "text": "regulation, prescribed to prevent collisions: “Every vessel shall, in a fog, mist, falling snow, or heavy rainstorms, go at a moderate speed, having careful regard to the existing circumstances and conditions. A steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained, shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until the danger of collision is over.” Article 16 of Regulations for Preventing Collisions in Harbors and in Inland Waters. 3 U. S. Comp. Stat. 19-13, § 7889 (Comp. St. 1916, § 7889). When the Clematis first could be seen through the fog by those directing the navigation of the El Monte, the latter was moving, with such speed that it could not be kept-from running into a vessel directly ahead, which was stationary or slowly moving in the same general direction in which the El Monte was going. Just prior to and at the time of the collision, the El Monte was moving past and not far from the docks along the water front of a busy port, where other vessels were likely to be met or overtaken; a dense fog rendering objects ahead not visible until they were so near that a vessel moving as the El Monte was could not avoid colliding with another vessel in its path, which was not moving towards it or across its course, and not, long before having been apprised that another vessel was near enough for a signal from it to be heard, whether the location of such other vessel was or was not disclosed. Considering where the El Monte was and the attending circumstances and conditions, we think the conclusion was warrantéd that it was not maintaining the moderate speed required by the first paragraph of the above-quoted regulation. The Nacoochee, 137 U. S. 330, 11 Sup. Ct. 122, 34 L. Ed. 687; The Umbria, 166 U. S. 417, 17 Sup. Ct. 610, 41 L. Ed. 1053; The Sagamore, 247 Fed. 743, - C. C. A. -; Quinette v." }, { "docid": "2442334", "title": "", "text": "by her unless its proximity be such as to indicate immediate danger; and that the obligations to slacken speed, and if necessary to stop and reverse, do not become operative until those in charge of the steamer know that they are approaching another vessel. In support of his contention, he cites The Leland (D. C.) 19 Fed. 771, The Ludvig Holberg, 157 U. S. 60, 15 Sup. Ct. 477, 39 L. Ed. 620, and other cases. But these cases are not inconsistent with the rules laid down in the cases which I have cited. The doctrine of maritime courts is that a steamer in a fog must not run at such speed as to prevent her from reversing her engines and coming to a standstill before she shall collide with a vessel which she ought to have seen. This doctrine is well stated by Judge Wallace in The Etruria, 147 Fed. 216, 77 C. C. A. 442. In the case at bar, as in The Nacoochee, supra, and The Umbria, supra, the duty is imposed upon the steamer by law to keep clear of the sailing vessel. The burden of proof is upon her to show fault upon the part of the brig, or to show that the collision was due to inevitable accident. There is some dispute as to the location on the high seas where the vessels came together. It appears that the brig made her last tack, previous to the collision, off Halifax Harbor, just before the fog shut in, about noon Sunday, July 29th, and that she proceeded, with her starboard tacks aboard, eloseliauled, until the time of the collision. In the light baffling wind her course could not have been steady, and it is impossible to determine at precisely what point she had arrived at midnight. The learned proctor for the government contends with great earnestness that she must have been at a much greater distance from the coast than is admitted by the petitioners; but from all the evidence I am persuaded that the conclusion of the petitioners is not far out of the" }, { "docid": "22383406", "title": "", "text": "if the latter has in all respects complied with the rules of navigation. In The City of New York, 147 U. S. 72, it was held that a steamer proceeding at her usual speed, upon hearing the foghorn of a bark only one point on her starboard bow, should at once have checked her speed, and if the sound indicated that the approaching vessel was near, should have stopped or reversed until the sound was definitely located, or the vessels came in sight of each other. And in The Martello, 153 U. S. 61, a steamer leaving the port of New York in a dense fog, at a speed of five to six miles ■ an hour, heard a blast from a fog horn on her starboard bow, indicating that a vessel was approaching from a direction which might take her across the steamer’s bow, and was held to have been in fault for not at once stopping, until, by repeated blasts of the horn, she could assure herself of the exact bearing, speed and course of the approaching vessel. The English cases, upon the subject of speed, are much more numerous and explicit. In that of The Frankland & Kestrel, L. R. 4 P. C. 529, two steamships were approaching each other in a fog so dense that vessels could not be seen at a greater distance than 200 or 300 feet. The speed of each vessel was not ovet' two to two and a half knots through the water. The finding of the admiralty court was that “ both vessels were going, in truth, in the most absolute uncertainty as to the proceedings of the other”; and the opinion of that court, fortified by that of its nautical assessors, was “ that upon hearing the whistles of each other so near and approaching each other,each vessel ought not only to have stopped, but to have reversed until its way was stopped, when it could have hailed and ascertained with certainty Avhich Avay the head of the other vessel was, and which Avay she AAras proceeding; and by that" } ]

[ { "docid": "23223825", "title": "", "text": "his assignee or licensee.” It makes that contention as to four patents: Arnold Patent No. 1,403,475, dated January 17, 1922; Arnold Patent No. 1,465,332, dated April 21; 1923; Arnold Patent No. 1,329,283, dated January 27, 1920; and Arnold Patent No. 1,448,550, dated March 13, 1923. The district court and circuit court of appeals found that there was no public use of either of the inventions of the first two patents prior to the filing dates of the di visional applications upon which they issued. These findings were made upon adequate evidence and petitioner’s contentions as to them will not be considered here. The subjects matter of the claims of the other two patents were disclosed in the original applications and were claimed in the continuation.applications upon which they issued. The patentee’s use was the only “public use” of the inventions covered by them. And that., did not precede by as much as two years the filing,of the original applications. The effective dates of the claims of the continuation applications are those of the original applications. In the absence of intervening adverse rights for more than two years prior to the continuation applications, they were in time. R. S. § 4886 (35 U. S. C. § 31). Crown Cork & Seal Co. v. Gutmann Co., ante, p. 159. Affirmed. Mr. Justice Roberts, Mr. Justice Cardozo and Mr. Justice Reed took, no part in the consideration or decision of this case. This sentence of the opinion is reported as amended by Order of May 16, 1938, post, p. 546. Mr. Justice Black, dissenting. The decisions in this case and Crown Cork & Seal Co. v. Gutmann Co., ante, p. 159, will inevitably result in a sweeping expansion of the statutory boundaries constitutionally fixed by Congress to limit the scope and duration of patent monopolies. The area of the patent monopoly is expanded by the holding that the exclusive right granted an inventor to “make, use and vend” his patented commercial device, permits the inventor’s corporate assignee (and other “patent pool” participants) to control how, and where the device can be used by" } ]

[ { "docid": "5415219", "title": "", "text": "v. Western Electric Company, 304 U.S. 175, 58 S.Ct. 849, 82 L.Ed. 1273 (1938). In those decisions, the court clarified that the lapse of the two-year time limit does not by itself demonstrate prosecution laches. “[I]n the absence of intervening adverse rights, the decision in [Webster ] does not mean that an excuse must be shown for a lapse of more than two years in presenting the divisional application.” Crown Cork, 304 U.S. at 167-68, 58 S.Ct. 842; see General Talking Pictures, 304 U.S. at 183, 58 S.Ct. 849 (“In the absence of intervening ad verse rights for more than two years prior to the continuation applications, they were in time”). A 1935 decision of the First Circuit Court of Appeals further clarifies the dimensions of the doctrine. In Utah Radio Products Co. v. Boudette, 78 F.2d 793 (1st Cir.1935), the First Circuit distinguished prosecution laches from abandonment. “This is a case of laches, not abandonment. To prove abandonment it is necessary to show an intention on the part of the inventor to abandon or give the subject-matter to the public; but where laches — unreasonable delay — is the issue, the intent is unimportant, and especially so where rights have attached pending the delay.” Id. at 799. The Utah Radio Products decision suggests that the reasonableness of a delay is to be measured not by the patent applicant’s subjective intent with respect to his application, but rather by some objective measure of reasonableness that can be applied without regard to the applicant’s actual attitude toward the patents or patent applications at issue. This point was later taken up by the Symbol court, which held that an applicant who complies with all pertinent statutes and rules regarding his patent application can nonetheless be barred from enforcing his patents by the doctrine of prosecution laches. See Symbol, 277 F.3d at 1363. If, as Symbol and Bogese II make plain, the prosecution laches defense has survived the many changes in patent law since the first full articulation of the doctrine in 1923, the questions remain, (1) what form does the prosecution laches" }, { "docid": "15125616", "title": "", "text": "which are virtually unreviewable by this court — is baffling. See LNP Eng’g Plastics, Inc. v. Miller Waste Mills, Inc., 275 F.3d 1347, 1361 (Fed.Cir.2001). The majority concludes that the district court did not draw the most reasonable inference regarding Stevens’s withholding of the published data. Maj. Op. at 733-34. Instead, the majority believes that there is another “an equally reasonable inference” — Stevens did not appreciate the potential importance of the data to the patentability of the claims. We should not draw inferences that the district court has already excluded based on its own credibility findings with respect to Stevens’s explanations for the withholding. In sum, in light of our prosecution laches precedent, I would not require that Barr have intervening rights during the period that Cancer Research delayed prosecution of its patent. Even if I did, I would not limit the prejudice inquiry to the period of delay. Further, given our deferential standard of review, I cannot agree that the district court’s intent finding with regard to inequitable conduct is clearly erroneous. Accordingly, I would uphold the district court’s application of prosecution laches and its finding of inequitable conduct. . The majority also cites to Webster Electric Co. v. Splitdorf Electical Co., 264 U.S. 463, 44 S.Ct. 342, 68 L.Ed. 792 (1924), Crown Cork & Seal Co. v. Ferdinand Gutmann Co., 304 U.S. 159, 58 S.Ct. 842, 82 L.Ed. 1265 (1938), and General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 58 S.Ct. 849, 82 L.Ed. 1273 (1938). None of these Supreme Court cases require a showing of prejudice where an applicant unreasonably extends prosecution by refusing to respond to the merits of nine substantially similar Office Actions. Un der Webster, “laches, equitable estoppel or intervening private or public rights” can each alone bar the right to a claim presented in a subsequent divisional patent. 264 U.S. at 471, 44 S.Ct. 342 (emphasis added). The Webster Court suggested that there is a presumption that such claims are unreasonable (and thus time-barred) where the applicant waited more than two years to present the claims in a divisional" }, { "docid": "15125592", "title": "", "text": "He also requested that his specification and claims be broadened to cover related innovations that others had patented in the intervening years. Id. at 53, 57, 44 S.Ct. 45. The Court held that Woodbridge had forfeited his right to his patent by “designed delay,” and specifically by attempting, for the admitted purpose of capturing the most commercial profit, to extend both the term of his patent monopoly and its scope to cover advances made by others in the field who had obtained patents without knowledge of Woodbridge’s patent. Id. at 56-57, 44 S.Ct. 45. Similarly in Webster Electric Co. v. Splitdorf Electrical Co., 264 U.S. 463, 44 S.Ct. 342, 68 L.Ed. 792 (1924), the Court again relied on both an unreasonable delay and intervening adverse rights to hold a patent forfeited for prosecution laches. In Webster, the applicant filed new and broader claims in a divisional application over eight years after his original application was filed. Yet during the eight-year delay, the subject matter of those new and broader claims had been disclosed and had come to be in general use while the applicant and his assignee “simply stood by and awaited developments.” Id. at 465, 44 S.Ct. 342. In holding that the delay was unreasonable and thus constituted laches, the Court concluded that the patent law should not be so loosely construed as to “bring about an undue extension of the patent monopoly against private and public rights.” Id. at 466, 44 S.Ct. 342 (emphasis added). The Court’s last pronouncements on prosecution laches in Crown Cork & Seal Co. v. Ferdinand Gutmann Co., 304 U.S. 159, 58 S.Ct. 842, 82 L.Ed. 1265 (1938), and General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 58 S.Ct. 849, 82 L.Ed. 1273 (1938), also relied on a requirement for intervening rights. In both cases the Court held that in the absence of intervening rights, no excuse is necessary for a delay in presenting new claims in a continuation or divisional application. Crown Cork, 304 U.S. at 167-68, 58 S.Ct. 842 (“It is clear that, in the absence of intervening adverse" }, { "docid": "6999595", "title": "", "text": "earlier held in this case that prosecution laches may render a patent unenforceable when it has issued only after an unreasonable and unexplained delay in prosecution. Symbol II, 277 F.3d at 1363, 1368. We did not set forth any firm guidelines for determining when such laches exists, but left this determination to the district court on remand, as the defense exists as an equitable doctrine. In so doing, however, we discussed precedent such as Woodbridge v. United States, 263 U.S. 50, 44 S.Ct. 45, 68 L.Ed. 159 (1923), and Webster Electric Co. v. Splitdorf Electrical Co., 264 U.S. 463, 44 S.Ct. 342, 68 L.Ed. 792 (1924), wherein the Supreme Court applied the doctrine of prosecution laches to render patents unenforceable. Although those cases involved a nine-and-a-half-year delay and an eight-year delay, respectively, the Court later held that the presumptive two-year time limit referred to in Webster was dictum because it was not directly applicable to the issue of laches on which the case was decided. Thus, there are no strict time limitations for determining whether continued refiling of patent applications is a legitimate utilization of statutory provisions or an abuse of those provisions. The matter is to be decided as a matter of equity, subject to the discretion of a district court before which the issue is raised. There are legitimate grounds for refiling a patent application which should not normally be grounds for a holding of laches, and the doctrine should be used sparingly lest statutory provisions be unjustifiably vitiated. The doctrine should be applied only in egregious cases of misuse of the statutory patent system. Filing a divisional application in response to a requirement for restriction is one such legitimate reason for refiling a patent application. Given one’s entitlement to claim an invention in various ways, and the PTO’s practice of limiting its examination of an application to only one of what it considers to be several inventions, it cannot, without more, be an abuse of the system to file divisional applications on various aspects that the PTO has considered to be separate and distinct from each other." }, { "docid": "15125617", "title": "", "text": "I would uphold the district court’s application of prosecution laches and its finding of inequitable conduct. . The majority also cites to Webster Electric Co. v. Splitdorf Electical Co., 264 U.S. 463, 44 S.Ct. 342, 68 L.Ed. 792 (1924), Crown Cork & Seal Co. v. Ferdinand Gutmann Co., 304 U.S. 159, 58 S.Ct. 842, 82 L.Ed. 1265 (1938), and General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 58 S.Ct. 849, 82 L.Ed. 1273 (1938). None of these Supreme Court cases require a showing of prejudice where an applicant unreasonably extends prosecution by refusing to respond to the merits of nine substantially similar Office Actions. Un der Webster, “laches, equitable estoppel or intervening private or public rights” can each alone bar the right to a claim presented in a subsequent divisional patent. 264 U.S. at 471, 44 S.Ct. 342 (emphasis added). The Webster Court suggested that there is a presumption that such claims are unreasonable (and thus time-barred) where the applicant waited more than two years to present the claims in a divisional application. Id. Under Webster, applicants could only obtain such claims if they provided justification for the more than two-year delay. Id. In Crown Cork, the Court clarified that \"in the absence of intervening rights, the decision in [Webster] does not mean that an excuse must be shown for a lapse of more than two years in presenting the divisional.” 304 U.S. at 167-68, 58 S.Ct. 842; see also General Talking Pictures, 304 U.S. at 184, 58 S.Ct. 849. Crown Cork and General Talking Pictures make clear that a two-year delay in filing a divisional is not per se unreasonable in the absence of intervening rights. However, nothing in these cases requires a party to show that it had intervening rights or suffered any other prejudice as a prerequisite to asserting the equitable defense of prosecution laches where the patentee’s prosecution delays are unreasonable under the totality of the circumstances. . While the majority suggests Cancer Research itself \"incurred a cost” due to the prosecution delay, that Cancer Research's delay resulted in its not getting the" }, { "docid": "12675866", "title": "", "text": "prosecution laches failed to state a claim upon which relief could be granted. The district court concluded that there was a sufficient case or controversy but dismissed plaintiffs’ laches claims. The sole issue on appeal is whether, as a matter of law, the equitable doctrine of laches may be applied to bar enforcement of patent claims that issued after an unreasonable and unexplained delay in prosecution even though the applicant complied with pertinent statutes and rules. Discussion In reviewing the propriety of decisions under Fed.R.Civ.P. 12(b)(6), we apply the rule of the regional circuit — in this case the United States Court of Appeals for the Ninth Circuit. Phonometrics v. Hospitality Franchise Sys., Inc., 203 F.3d 790, 793, 53 USPQ2d 1762, 1764 (Fed.Cir.2000). Therefore, consistent with the rule in the Ninth Circuit, we review the decision below de novo, and “[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.” O’Loghlin v. County of Orange, 229 F.3d 871, 874 (9th Cir.2000); accord Advanced Cardiovascular Sys., v. Scimed Life Sys. ., Inc., 988 F.2d 1157, 1160, 26 USPQ2d 1038, 1041 (Fed.Cir. 1993). We have jurisdiction pursuant to 28 U.S.C. § 1292(b) & (c). The defense of prosecution laches finds its origin in two Supreme Court cases: Woodbridge v. United States, 263 U.S. 50, 44 S.Ct. 45, 68 L.Ed. 159 (1923); and Webster Electric Co. v. Splitdorf Electrical Co., 264 U.S. 463, 44 S.Ct. 342, 68 L.Ed. 792 (1924). The Court first applied the doctrine in Woodbridge to render a patent unenforceable where there had been an unexplained nine-year delay. Pursuant to a statute in place at the time, the Patent Office agreed to delay the issuance of Woodbridge’s patent for one year. At the end of that time, the Patent Office neglected to issue the patent. Rather than inform the Patent Office of its error, Woodbridge waited nine years before requesting that the patent be issued. At the time of issuance, he sought to amend his specification and claims to encompass related innovations that had occurred in the intervening nine years." }, { "docid": "15125593", "title": "", "text": "come to be in general use while the applicant and his assignee “simply stood by and awaited developments.” Id. at 465, 44 S.Ct. 342. In holding that the delay was unreasonable and thus constituted laches, the Court concluded that the patent law should not be so loosely construed as to “bring about an undue extension of the patent monopoly against private and public rights.” Id. at 466, 44 S.Ct. 342 (emphasis added). The Court’s last pronouncements on prosecution laches in Crown Cork & Seal Co. v. Ferdinand Gutmann Co., 304 U.S. 159, 58 S.Ct. 842, 82 L.Ed. 1265 (1938), and General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 58 S.Ct. 849, 82 L.Ed. 1273 (1938), also relied on a requirement for intervening rights. In both cases the Court held that in the absence of intervening rights, no excuse is necessary for a delay in presenting new claims in a continuation or divisional application. Crown Cork, 304 U.S. at 167-68, 58 S.Ct. 842 (“It is clear that, in the absence of intervening adverse rights, the decision in Webster, ... does not mean that an excuse must be shown for a lapse of more than two years in presenting the divisional application.”); Gen. Talking Pictures, 304 U.S. at 183, 58 S.Ct. 849 (“In the absence of intervening adverse rights for more than two years prior to the [filing of new claims in] continuation applications, they were [filed] in time.”). This court’s precedent also recognizes intervening adverse rights as a requirement to holding a patent unenforceable for prosecution laches. In first recognizing the doctrine, we relied on the above-cited Supreme Court cases and noted their reliance on intervening rights. Symbol Techs. I, 277 F.3d at 1364-65. For example, we stated that in Crown Cork, “the [Supreme C]ourt ratified the existence of the prosecution laches defense; it did not apply the defense there in the absence of intervening rights,” and we noted that “in General Talking Pictures, the Court rejected the defense of prosecution laches because there was no evidence of intervening public rights.” Id. at 1365. We then applied the" }, { "docid": "15931314", "title": "", "text": "it acted arbitrarily in rejecting the applicant’s patent application here. Bogese contends that no statutory, regulatory, or case law support exists for the PTO’s action in this case. We disagree. Ill In Symbol Technologies, Inc. v. Lemelson Medical, 277 F.3d 1361, 1368, 61 USPQ2d 1515, 1520 (Fed.Cir.2002), in the context of an infringement case, this court recently held that the equitable doctrine of laches may be applied to bar enforcement of a patent that issued after unreasonable and unexplained delay in prosecution, even though the patent applicant complied with pertinent statutes and rules. We found that the Supreme Court had recognized the doctrine of prosecution history laches in at least four decisions, including General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 58 S.Ct. 849, 82 L.Ed. 1273, 37 USPQ 357 (1938), Crown Cork & Seal v. Ferdinand Gutmann Co., 304 U.S. 159, 58 S.Ct. 842, 82 L.Ed. 1265, 37 USPQ 351 (1938), Webster Electric Co. v. Splitdorf Electrical Co., 264 U.S. 463, 44 S.Ct. 342, 68 L.Ed. 792 (1924), and Wood-bridge v. United States, 263 U.S. 50, 44 S.Ct. 45, 68 L.Ed. 159 (1923). Further, the passage of the Patent Act of 1952, Pub.L. No. 82-593, 66 Stat. 792, specifically those sections now codified at 35 U.S.C. §§ 120 and 121, which entitled continuation and divisional applications to the filing dates of their parent applications, did not foreclose the application of prosecution history laches to bar enforcement of a patent claim. Symbol Techs., 277 F.3d at 1365-66, 61 USPQ2d at 1518. Thus, in Symbol Technologies we held that a patent may be rendered unenforceable if it was obtained after an unreasonable and unexplained delay in prosecution. Whatever the views of the individual panel members concerning the correctness of our decision in Symbol Technologies, we are nonetheless bound by it, and we see no basis for denying the power to the PTO itself that we have recognized exists in the district courts in infringement actions. It necessarily follows that the PTO has the authority to reject patent applications for patents that would be unenforceable under our holding in" }, { "docid": "12675872", "title": "", "text": "actions; 2) the plain language and legislative history of the Patent Act of 1952 forecloses the application of prosecution laches; and 3) two of our non-prece-dential opinions reject the prosecution laches defense and should be binding upon us under the reasoning of Anastasoff v. United States, 223 F.3d 898 (8th Cir.2000), vacated as moot, 235 F.3d 1054 (8th Cir.2000) (en banc). We address each argument in turn. 1. Quoting 4 Donald S. Chisum, Patents § 11.05[1] at 11-264 (1996), Lemelson argues that prosecution laches has been limited to claims arising out of interference proceedings: “Possible implications of Webster Electric outside the interference context were dispelled by the Supreme Court in Crown Cork & Seal Co. v. Ferdinand Gutmann Co.” We find no support for this view. As discussed above, the claims at issue in Webster were not the subject of an interference proceeding. The Court was more concerned with the reasonableness of the delay between the initial fifing of the application and the subsequent filing of claims 7 and 8 than it was with the interference. Nothing suggests that Webster was limited to cases involving an interference. Crown Cork validated prosecution laches and did not limit it to cases involving interferences. Rather it took aim at the bright-line rule established by Webster that a two-year delay is prima facie unreasonable and eliminated it. 2. Lemelson argues that the passage of the 1952 Patent Act, specifically 35 U.S.C. §§ 120 and 121, entitling continuation and divisional applications respectively to the filing dates of their parents, foreclosed the application of laches. Section 120 provides that if “[a]n application for patent for an invention disclosed in the manner provided by the first paragraph of section 112 of this title in an application previously filed in the United States ... by the same inventor shall have the same effect, as to such invention, as though filed on the date of the prior application ...” 35 U.S.C. § 120 (1994). Section 121 provides that “a divisional application which complies with the requirements of section 120 of this title [ ] shall be entitled to the" }, { "docid": "15931313", "title": "", "text": "advance prosecution and then claim to have prosecuted an application in compliance with the applicable patent statute and regulations.” Id. at 37, 818 F.2d 877. Bogese filed this appeal. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A). DISCUSSION I Our review of a decision of the Board is governed by the Administrative Procedure Act, 5 U.S.C. § 706. Dickinson v. Zurko, 527 U.S. 150, 165, 119 S.Ct. 1816, 144 L.Ed.2d 143, 50 USPQ2d 1930, 1937 (1999). Under that statutory provision, we will set aside legal actions of the Board that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” and set aside factual findings that are “unsupported by substantial evidence.” 5 U.S.C. § 706; In re Gartside, 203 F.3d 1305, 1316, 53 USPQ2d 1769, 1776 (Fed.Cir.2000). II On this appeal the primary issues are: (1) whether the PTO is authorized to reject a patent application where the applicant fails to advance prosecution of his application for an unreasonably long period; and (2) if the PTO is so authorized, whether it acted arbitrarily in rejecting the applicant’s patent application here. Bogese contends that no statutory, regulatory, or case law support exists for the PTO’s action in this case. We disagree. Ill In Symbol Technologies, Inc. v. Lemelson Medical, 277 F.3d 1361, 1368, 61 USPQ2d 1515, 1520 (Fed.Cir.2002), in the context of an infringement case, this court recently held that the equitable doctrine of laches may be applied to bar enforcement of a patent that issued after unreasonable and unexplained delay in prosecution, even though the patent applicant complied with pertinent statutes and rules. We found that the Supreme Court had recognized the doctrine of prosecution history laches in at least four decisions, including General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 58 S.Ct. 849, 82 L.Ed. 1273, 37 USPQ 357 (1938), Crown Cork & Seal v. Ferdinand Gutmann Co., 304 U.S. 159, 58 S.Ct. 842, 82 L.Ed. 1265, 37 USPQ 351 (1938), Webster Electric Co. v. Splitdorf Electrical Co., 264 U.S. 463, 44 S.Ct. 342, 68 L.Ed. 792 (1924), and Wood-bridge v." }, { "docid": "15125591", "title": "", "text": "(Fed.Cir.1992) (“Two elements underlie the defense of laches: (a) the patentee’s delay in bringing suit was unreasonable and inexcusable, and (b) the alleged infringer suffered material prejudice attributable to the delay.”). We also agree and now hold that to establish prejudice an accused infringer must show evidence of intervening rights, ie., that either the accused infringer or others invested in, worked on, or used the claimed technology during the period of delay. The Supreme Court cases underlying the doctrine all rely on a finding that the applicant’s delay in prosecution adversely affected others working in the same field. In Woodbridge v. United States, applicant Woodbridge delayed the issuance of his patent after allowance by requesting that the PTO keep it secret in its archives as the then-governing patent statute permitted for a term not to exceed one year. 263 U.S. 50, 52-53, 44 S.Ct. 45, 68 L.Ed. 159 (1923). Nine and a half years later, Wood-bridge requested that the patent issue because the technology had become commercially profitable. Id. at 53, 56, 44 S.Ct. 45. He also requested that his specification and claims be broadened to cover related innovations that others had patented in the intervening years. Id. at 53, 57, 44 S.Ct. 45. The Court held that Woodbridge had forfeited his right to his patent by “designed delay,” and specifically by attempting, for the admitted purpose of capturing the most commercial profit, to extend both the term of his patent monopoly and its scope to cover advances made by others in the field who had obtained patents without knowledge of Woodbridge’s patent. Id. at 56-57, 44 S.Ct. 45. Similarly in Webster Electric Co. v. Splitdorf Electrical Co., 264 U.S. 463, 44 S.Ct. 342, 68 L.Ed. 792 (1924), the Court again relied on both an unreasonable delay and intervening adverse rights to hold a patent forfeited for prosecution laches. In Webster, the applicant filed new and broader claims in a divisional application over eight years after his original application was filed. Yet during the eight-year delay, the subject matter of those new and broader claims had been disclosed and had" }, { "docid": "15931315", "title": "", "text": "United States, 263 U.S. 50, 44 S.Ct. 45, 68 L.Ed. 159 (1923). Further, the passage of the Patent Act of 1952, Pub.L. No. 82-593, 66 Stat. 792, specifically those sections now codified at 35 U.S.C. §§ 120 and 121, which entitled continuation and divisional applications to the filing dates of their parent applications, did not foreclose the application of prosecution history laches to bar enforcement of a patent claim. Symbol Techs., 277 F.3d at 1365-66, 61 USPQ2d at 1518. Thus, in Symbol Technologies we held that a patent may be rendered unenforceable if it was obtained after an unreasonable and unexplained delay in prosecution. Whatever the views of the individual panel members concerning the correctness of our decision in Symbol Technologies, we are nonetheless bound by it, and we see no basis for denying the power to the PTO itself that we have recognized exists in the district courts in infringement actions. It necessarily follows that the PTO has the authority to reject patent applications for patents that would be unenforceable under our holding in Symbol Technologies. Indeed, we think the PTO’s authority to sanction undue delay is even broader than the authority of a district court to hold a patent unenforceable. The PTO is the administrative agency that is “responsible for the granting and issuing of patents. ...” 35 U.S.C. § 2 (2000). Like other administrative agencies, the PTO may impose reasonable deadlines and requirements on parties that appear before it. The PTO has inherent authority to govern procedure before the PTO, and that authority allows it to set reasonable deadlines and requirements for the prosecution of applications. To be sure, an administrative agency cannot impose a penalty or forfeiture without providing notice. United States v. Chrysler Corp., 158 F.3d 1350, 1354 (D.C.Cir.1998); Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1329 (D.C.Cir.1995). Here, Bogese does not claim that he was not provided with notice of what the PTO required of him or the potential consequences of non-compliance. Bogese here received ample notice that an unreasonable delay could result in forfeiture. First, in Ex parte Hull, 191 USPQ at" }, { "docid": "5415218", "title": "", "text": "than those originally sought.” Id. at. 465-66, 44 S.Ct. 342. In such a case, the court had “no hesitation in saying that the delay was unreasonable, and, under the circumstances shown by the record, constitutes laches, by which the petitioner lost whatever rights it might otherwise be entitled to.” Id. at 466, 44 S.Ct. 342. The court went on to conclude that “in cases involving laches, equitable estoppel or intervening private or public rights, the [then applicable] two-year time limit [in presenting an application] prima facie applies to divisional applications and can only be avoided by proof of special circumstances justifying a longer delay.” Id. at 471, 44 S.Ct. 342. In two 1938 decisions, the Court limited the scope of the Webster holding. Those decisions address the relevance of the two-year time limit on the presentation of patent applications to the doctrine of prosecution laches for the prosecution of divisional applications. See Crown Cork & Seal Co. v. Ferdinand Gutmann Co., 304 U.S. 159, 58 S.Ct. 842, 82 L.Ed. 1265 (1938); General Talking Pictures Corp. v. Western Electric Company, 304 U.S. 175, 58 S.Ct. 849, 82 L.Ed. 1273 (1938). In those decisions, the court clarified that the lapse of the two-year time limit does not by itself demonstrate prosecution laches. “[I]n the absence of intervening adverse rights, the decision in [Webster ] does not mean that an excuse must be shown for a lapse of more than two years in presenting the divisional application.” Crown Cork, 304 U.S. at 167-68, 58 S.Ct. 842; see General Talking Pictures, 304 U.S. at 183, 58 S.Ct. 849 (“In the absence of intervening ad verse rights for more than two years prior to the continuation applications, they were in time”). A 1935 decision of the First Circuit Court of Appeals further clarifies the dimensions of the doctrine. In Utah Radio Products Co. v. Boudette, 78 F.2d 793 (1st Cir.1935), the First Circuit distinguished prosecution laches from abandonment. “This is a case of laches, not abandonment. To prove abandonment it is necessary to show an intention on the part of the inventor to abandon or" }, { "docid": "6999594", "title": "", "text": "of machine vision and bar code technology, and the prejudice to the public resulting from Lemelson’s delay. Those reasons, Symbol argues, were well supported by evidence and properly considered by the court. It also contends that the laches standard does not require “intentional” delay, but only that which is “unreasonable and unexplained.” Lemelson finally argues that the district court erred in its claim constructions and in excluding depositions of the deceased inventor and other evidence. It additionally challenges the court’s holding of a lack of infringement. We agree with Symbol that the court did not abuse its discretion in holding that Lemelson’s patents are unenforceable under the doctrine of prosecution laches. The doctrine of prosecution laches is an equitable defense, Symbol II, 277 F.3d at 1366 (quoting P.J. Federico, Commentary on the New Patent Act, 75 J. Pat. & Trademark Off. Soc’y 161, 215 (1993)), and we review the judgment of the district court on that issue for an abuse of discretion, Bridgestone/Firestone Research v. Auto. Club, 245 F.3d 1359, 1361 (Fed.Cir.2001). This court has earlier held in this case that prosecution laches may render a patent unenforceable when it has issued only after an unreasonable and unexplained delay in prosecution. Symbol II, 277 F.3d at 1363, 1368. We did not set forth any firm guidelines for determining when such laches exists, but left this determination to the district court on remand, as the defense exists as an equitable doctrine. In so doing, however, we discussed precedent such as Woodbridge v. United States, 263 U.S. 50, 44 S.Ct. 45, 68 L.Ed. 159 (1923), and Webster Electric Co. v. Splitdorf Electrical Co., 264 U.S. 463, 44 S.Ct. 342, 68 L.Ed. 792 (1924), wherein the Supreme Court applied the doctrine of prosecution laches to render patents unenforceable. Although those cases involved a nine-and-a-half-year delay and an eight-year delay, respectively, the Court later held that the presumptive two-year time limit referred to in Webster was dictum because it was not directly applicable to the issue of laches on which the case was decided. Thus, there are no strict time limitations for determining whether" }, { "docid": "12675886", "title": "", "text": "held that Woodbridge had waited too long. Indeed so; surely this is not “laches,” for Woodbridge had already lost his statutory right to the patent. And in Webster Electric Co. v. Splitdorf Electrical Co., 264 U.S. 463, 44 S.Ct. 342, 68 L.Ed. 792 (1924) the applicant presented, in a divisional application, claims covering subject matter in an adverse patent, five years after issuance of the adverse patent, with which the applicant had previously lost an interference; a sequence that the Court struck down as “laches.” In Crown Cork & Seal Co. v. Ferdinand Gutmann Co., 304 U.S. 159, 166-68, 58 S.Ct. 842, 82 L.Ed. 1265 (1938) the Court made clear that Webster did not present a general requirement that divisional applications must be filed within two years after the issuance of the parent, or that claims must be presented within two years after issuance of an intervening patent. Any doubt as to the reach of these cases was resolved in the 1952 Patent Act, which codified the rules for continuing and divisional applications. The codifiers undoubtedly recognized the many purposes served by the various statutory forms of continuing applications, for they chose not to place time limits on their use, beyond those placed by the statute. I take note that when the Patent Office sought to limit the number of continuations to three, the CCPA rejected that position; in In re Henriksen, 55 C.C.P.A. 1384, 399 F.2d 253, 158 USPQ 224 (CCPA 1968), the court discussed the genesis of § 120 and stated that the imposition of new limits on the continuation practice “is for Congress to decide.” Id. at 262, 158 USPQ at 231. Lemelson is not here charged with violation of § 120 or § 121. Nor is he charged with fraudulent conduct, deception, or other wrongdoing. The only charge is that, despite full compliance with statute and regulation, he took too long to present his claims. This case is surely distinguished from Woodbridge, where a one-year delay that was authorized by statute became a nine-year forfeiture by the applicant. And it is surely distinguished from Webster, which" }, { "docid": "12675869", "title": "", "text": "a patent application in 1910 that ultimately issued in 1916. In 1915, while the original application was still pending, Kane filed a divisional application copying nine claims of a recently issued patent for the purpose of provoking an interference. After losing the interference, he filed two additional claims, claims 7 and 8, which issued in 1918 and were the subject of the litigation. These claims had not been involved in the earlier interference. “During all of this time the subject-matter [of the claims] was disclosed and in general use; and Kane and his assignee, so far as claims 7 and 8 are concerned, simply stood by and awaited developments.” 264 U.S. at 465, 44 S.Ct. 342. In holding claims 7 and 8 unenforceable, the Court stated, “[w]e have no hesitation in saying that the delay was unreasonable, and, under the circumstances shown by the record, constitutes laches, by which the petitioner lost whatever rights it might otherwise have been entitled to.” Id. at 466, 44 S.Ct. 342. The Court went on to say that a two-year delay was prima facie evidence of unreasonableness. Id. at 471, 44 S.Ct. 342. The Supreme Court subsequently ratified prosecution laches as a defense to an infringement action involving new claims issuing from divisional and continuing applications that prejudice intervening adverse public rights. See Crown Cork & Seal Co. v. Ferdinand Gutmann Co., 304 U.S. 159, 58 S.Ct. 842, 82 L.Ed. 1265, 37 USPQ 351 (1938); Gen. Talking Pictures Corp. v. W. Elec. Co., 304 U.S. 175, 58 S.Ct. 849, 82 L.Ed. 1273, 37 USPQ 357 (1938). In Crown Cork, the Court held that the presumptive two-year time limit of Webster was dictum because it was “not directly applicable to the precise question of laches upon which the case turned.” 304 U.S. at 167, 58 S.Ct. 842, 82 L.Ed. 1265, 37 USPQ at 354. The Court contin ued: “It is clear that, in the absence of intervening rights, the decision in Webster Co. v. Splitdorf Co. does not mean that an excuse must be shown for a lapse of more than two years in presenting" }, { "docid": "5415217", "title": "", "text": "“The gist of the reason for [this] conclusion [is] that the purpose and the result of the conduct of the inventor [was] to postpone the time when the public could enjoy the free use of the invention.” Id. at 60, 44 S.Ct. 45. The Woodbridge Court identified two substantive policies served by the doctrine of prosecution laches: (1) preventing a patent applicant from deliberately delaying the issuance of a patent the applicant “always intended to secure” solely to increase the commercial value of the patent; and (2) preventing a patent applicant from unreasonably postponing “the time when the public could enjoy the free use of [an] invention” that would otherwise have been made available to the public at a much earlier date. The Court extended the doctrine to cover divisional applications in Webster Electric Co v. Splitdorf Electrical Co, 264 U.S. 463, 44 S.Ct. 342, 68 L.Ed. 792 (1924). In Webster, the court addressed “a case of unreasonable delay and neglect on the part of the applicant and his assignee in bringing forward claims broader than those originally sought.” Id. at. 465-66, 44 S.Ct. 342. In such a case, the court had “no hesitation in saying that the delay was unreasonable, and, under the circumstances shown by the record, constitutes laches, by which the petitioner lost whatever rights it might otherwise be entitled to.” Id. at 466, 44 S.Ct. 342. The court went on to conclude that “in cases involving laches, equitable estoppel or intervening private or public rights, the [then applicable] two-year time limit [in presenting an application] prima facie applies to divisional applications and can only be avoided by proof of special circumstances justifying a longer delay.” Id. at 471, 44 S.Ct. 342. In two 1938 decisions, the Court limited the scope of the Webster holding. Those decisions address the relevance of the two-year time limit on the presentation of patent applications to the doctrine of prosecution laches for the prosecution of divisional applications. See Crown Cork & Seal Co. v. Ferdinand Gutmann Co., 304 U.S. 159, 58 S.Ct. 842, 82 L.Ed. 1265 (1938); General Talking Pictures Corp." }, { "docid": "12675871", "title": "", "text": "[a] divisional application.” Crown Cork at 167-68, 304 U.S. 159, 58 S.Ct. 842, 82 L.Ed. 1265, 37 USPQ at 354. By this, the court ratified the existence of the prosecution laches defense; it did not apply the defense there in the absence of intervening rights. Similarly, in General Talking Pictures, the Court rejected the defense of prosecution laches because there was no evidence of intervening public rights. “In the absence of intervening adverse rights for more than two years prior to the continuation applications, they were [filed] in time.” 304 U.S. at 183, 58 S.Ct. 849, 82 L.Ed. 1273, 37 USPQ at 360. This case likewise evinced the existence of prosecution lach-es. Indeed, the contemporary learned treatises confirmed the existence of the prosecution laches defense. See 2 Anthony William Deller, Walker on Patents §§ 183-184 (1937 and 1948 Supp.); Beirne Stedman, Patents § 111 (Michie Co.1939). Lemelson argues that the defense is not available here for three reasons: 1) the rule espoused in Webster and its progeny is limited to claims arising out of interference actions; 2) the plain language and legislative history of the Patent Act of 1952 forecloses the application of prosecution laches; and 3) two of our non-prece-dential opinions reject the prosecution laches defense and should be binding upon us under the reasoning of Anastasoff v. United States, 223 F.3d 898 (8th Cir.2000), vacated as moot, 235 F.3d 1054 (8th Cir.2000) (en banc). We address each argument in turn. 1. Quoting 4 Donald S. Chisum, Patents § 11.05[1] at 11-264 (1996), Lemelson argues that prosecution laches has been limited to claims arising out of interference proceedings: “Possible implications of Webster Electric outside the interference context were dispelled by the Supreme Court in Crown Cork & Seal Co. v. Ferdinand Gutmann Co.” We find no support for this view. As discussed above, the claims at issue in Webster were not the subject of an interference proceeding. The Court was more concerned with the reasonableness of the delay between the initial fifing of the application and the subsequent filing of claims 7 and 8 than it was with the" }, { "docid": "12675870", "title": "", "text": "two-year delay was prima facie evidence of unreasonableness. Id. at 471, 44 S.Ct. 342. The Supreme Court subsequently ratified prosecution laches as a defense to an infringement action involving new claims issuing from divisional and continuing applications that prejudice intervening adverse public rights. See Crown Cork & Seal Co. v. Ferdinand Gutmann Co., 304 U.S. 159, 58 S.Ct. 842, 82 L.Ed. 1265, 37 USPQ 351 (1938); Gen. Talking Pictures Corp. v. W. Elec. Co., 304 U.S. 175, 58 S.Ct. 849, 82 L.Ed. 1273, 37 USPQ 357 (1938). In Crown Cork, the Court held that the presumptive two-year time limit of Webster was dictum because it was “not directly applicable to the precise question of laches upon which the case turned.” 304 U.S. at 167, 58 S.Ct. 842, 82 L.Ed. 1265, 37 USPQ at 354. The Court contin ued: “It is clear that, in the absence of intervening rights, the decision in Webster Co. v. Splitdorf Co. does not mean that an excuse must be shown for a lapse of more than two years in presenting [a] divisional application.” Crown Cork at 167-68, 304 U.S. 159, 58 S.Ct. 842, 82 L.Ed. 1265, 37 USPQ at 354. By this, the court ratified the existence of the prosecution laches defense; it did not apply the defense there in the absence of intervening rights. Similarly, in General Talking Pictures, the Court rejected the defense of prosecution laches because there was no evidence of intervening public rights. “In the absence of intervening adverse rights for more than two years prior to the continuation applications, they were [filed] in time.” 304 U.S. at 183, 58 S.Ct. 849, 82 L.Ed. 1273, 37 USPQ at 360. This case likewise evinced the existence of prosecution lach-es. Indeed, the contemporary learned treatises confirmed the existence of the prosecution laches defense. See 2 Anthony William Deller, Walker on Patents §§ 183-184 (1937 and 1948 Supp.); Beirne Stedman, Patents § 111 (Michie Co.1939). Lemelson argues that the defense is not available here for three reasons: 1) the rule espoused in Webster and its progeny is limited to claims arising out of interference" }, { "docid": "12675885", "title": "", "text": "whereby routine actions, in full statutory compliance, can years later be challenged as having been done too late or having taken too long. The consequences of this new cause of action of “prosecution laches” have not been explored, for this court is presented' only with the concerns of those charged with infringing these Lemelson patents. However, the consequences are not limited to this case, but will open legally granted patents to a new source of satellite litigation of unforeseen scope, for the continuation practice is ubiquitous in patent prosecution. The plaintiffs rely on two cases, decided in 1923 and 1924, which they say established the principle of laches in patent prosecution. These cases did not establish such a principle. In Woodbridge v. United States, 263 U.S. 50, 44 S.Ct. 45, 68 L.Ed. 159 (1923) the applicant waited nine years after the patent had been allowed by the Patent Office and given a statutory one-year delay in issuance, before calling, the non-issuance to the attention of the Patent Office and requesting issuance with changes. The Court held that Woodbridge had waited too long. Indeed so; surely this is not “laches,” for Woodbridge had already lost his statutory right to the patent. And in Webster Electric Co. v. Splitdorf Electrical Co., 264 U.S. 463, 44 S.Ct. 342, 68 L.Ed. 792 (1924) the applicant presented, in a divisional application, claims covering subject matter in an adverse patent, five years after issuance of the adverse patent, with which the applicant had previously lost an interference; a sequence that the Court struck down as “laches.” In Crown Cork & Seal Co. v. Ferdinand Gutmann Co., 304 U.S. 159, 166-68, 58 S.Ct. 842, 82 L.Ed. 1265 (1938) the Court made clear that Webster did not present a general requirement that divisional applications must be filed within two years after the issuance of the parent, or that claims must be presented within two years after issuance of an intervening patent. Any doubt as to the reach of these cases was resolved in the 1952 Patent Act, which codified the rules for continuing and divisional applications. The codifiers" } ]

[ { "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": "7962480", "title": "", "text": "Nuclear Engineering, 660 F.2d at 251; Grafon, 602 F.2d at 783. Western’s complaint contains only the bare statement that jurisdiction exists under the Interstate Commerce Act. Western did not respond to Couzens’ affidavit with competent proof that jurisdiction existed. That affidavit stands, therefore, as proof that the district court did not have' jurisdiction over the dispute. Western argues that the mere fact that the pallets moved between states, a fact recognized by the trial court, supports jurisdiction. In response to this, we simply state that we see no reason to allow this plaintiff in effect to create jurisdiction under the Interstate Commerce Act by hauling these pallets to Iowa and back without authorization. The district court is not precluded from considering conflicting evidence which weighs on the jurisdictional determination. The Third Circuit has explained that establishing jurisdiction on a Rule 12(b)(1) motion entails more than mere acceptance of the plaintiff’s factual allegations: 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, 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. Mortensen v. First Federal Savings and Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977) [footnote omitted]. This court recognizes that procedure. Grafon, 602 F.2d at 783. The plaintiff did not contest the existence of an oral agreement for purely intrastate movement of pallets during the district court’s deliberations on the defendant’s Rule 12(b)(1) motion to dismiss. Therefore, the district court’s recognition of the existence of that agreement will not be disturbed. See, e.g., Williamson v. Tucker, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981) (factual determinations by the district court reviewed under “clearly erroneous” standard). Ill The Interstate Commerce Act" }, { "docid": "9398622", "title": "", "text": "380, 383 (E.D.Pa. 1994), aff'd, 92 F.3d 1172 (3d Cir.1996). Under those circumstances, the court may dismiss the complaint only if it appears to a certainty that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction. See Mortensen, 549 F.2d at 891; Kronmuller v. West End Fire Co. No. 3 Fire Dep’t of Borough of Phoenixville, 123 F.R.D. 170, 172 (E.D.Pa. 1988). A defendant may also challenge a federal court’s jurisdiction by factually attacking the plaintiffs jurisdictional allegations as set forth in the complaint. See Mortensen, 549 F.2d at 891. In such circumstances, the “court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Id. Thus, “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.” Id. The court may consider affidavits, depositions and testimony to resolve factual issues bearing on jurisdiction. See Gotha v. United States, 115 F.3d 176, 179 (3d Cir.1997). The plaintiff bears the burden of proving that the court has jurisdiction to adjudicate the claims in the complaint. See Mortensen, 549 F.2d at 891. Although Defendants have not stated whether they consider their Rule 12(b)(1) motion to be a facial or factual attack, they have attached the Declaration of Professor Gerhard Laule to their reply brief. Furthermore, Iwanowa submitted the Declaration of Dr. Ekkehard Schumann with her opposition brief. Therefore, this Court will evaluate the 12(b)(1) motion as a factual attack and consider the declarations that the parties have submitted. Upon consideration of the Complaint, the relevant case and statutory law and the declarations the parties have submitted to the Court, this Court finds that Defendants’ motion to dismiss the claims under the law of nations for lack of subject matter jurisdiction is without merit. As shown below, this Court has jurisdiction over the instant claims, pursuant to the Alien Tort Claims Act, 28 U.S.C. § 1350. 2. Alien Tort Claims Act Iwanowa claims that the Alien Tort Claims Act" }, { "docid": "7449431", "title": "", "text": "If so, the plaintiff is left with safeguards similar to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised-the court must consider the allegations in the plaintiff’s complaint as true. E. g., Spector v. L Q Motor Inns, Inc., 517 F. 2d 278, 281 (5th Cir. 1975); Herpich v. Wallace, 430 F.2d 792, 802 (5th Cir. 1970). But the two motions are treated quite differently when matter outside the complaint is the basis of the attack. Rule 12(b) provides that a motion to dismiss for failure to state a claim will be automatically converted into a motion for summary judgment (Rule 56) if the court considers matters outside the pleadings. This provides an additional safeguard for the plaintiff, for, in addition to having all his allegations taken as true, the trial court cannot grant the motion unless there is no genuine issue of material fact. This protection is not, however, provided the plaintiff who faces dismissal for lack of subject matter jurisdiction. As the Court of Appeals for the Third Circuit has explained: The facial attack [on subject matter jurisdiction] 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, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3rd Cir. 1977). The distinction between factual Rule 12(b)(1) motions and factual Rule 12(b)(6) motions is rooted in the unique nature of the jurisdictional question. It is elementary that a district" }, { "docid": "22700414", "title": "", "text": "v. Wallace, 430 F.2d 792, 802 (5th Cir. 1970). But the two motions are treated quite differently when matter outside the complaint is the basis of the attack. Rule 12(b) provides that a motion to dismiss for failure to state a claim will be automatically converted into a motion for summary judgment (Rule 56) if the court considers matters outside the pleadings. This provides an additional safeguard for the plaintiff, for, in addition to having all his allegations taken as true, the trial court cannot grant the motion unless there is no genuine issue of material fact. This protection is not, however, provided the plaintiff who faces dismissal for lack of subject matter jurisdiction. As the Court of Appeals for the Third Circuit has explained: The facial attack [on subject matter jurisdiction] 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, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3rd Cir. 1977). The distinction between factual Rule 12(b)(1) motions and factual Rule 12(b)(6) motions is rooted in the unique nature of the jurisdictional question. It is elementary that a district court has broader power to decide its own right to hear the case than it has when the merits of the case are reached. Jurisdictional issues are for the court — not a jury-to decide, whether they hinge on legal or factual determinations. See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1350 (1969). The" }, { "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": "16599527", "title": "", "text": "MEMORANDUM AND ORDER MORAN, Chief Judge. Patricia Norman (Norman) filed suit against Dr. Donald Levy, Tyra Cosmetics, Inc., and Lynn Jahncke (collectively, Tyra), claiming, inter alia, that she was the victim of sex discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq. Tyra moved to dismiss Norman’s Title VII claim for lack of subject matter jurisdiction, on the ground that Tyra had never employed fifteen or more employees for twenty or more weeks of the calendar years relevant to Norman’s allegations, and that motion has prompted a lengthy personnel audit. Inasmuch as neither side to the dispute had properly framed the relevant issue or presented evidence from which this court could make its own jurisdictional count, we continued Tyra’s motion and ordered the parties to submit further evidence in accordance with our memorandum opinion. Norman v. Levy, 756 F.Supp. 1060 (N.D.Ill.1990). Norman and Tyra have submitted their supplemental briefs and additional evidence. Upon due consideration, and for the reasons set forth herein, this court now dismisses Norman’s Title VII and pendent state claims for lack of subject matter jurisdiction. After months of counting, we cannot count to fifteen. DISCUSSION As the plaintiff in this case, Norman bears the burden of proving that this court has subject matter jurisdiction over her claim. Grafon Corp. v. Hausermann, 602 F.2d 781 (7th Cir.1979). We are not precluded from considering conflicting evidence in making our determination as to whether she has carried that burden: “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, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Western Transport. Co. v. Couzens Warehouse & Distributors, Inc., 695 F.2d 1033 (7th Cir.1982) (quoting Mortensen v. First Federal Savings and Loan Ass’n, 549 F.2d 884, 891" }, { "docid": "23209635", "title": "", "text": "POMs instructions require medical or psychological consultants to assess what an individual can do on a sustained basis in the determination of residual functional capacity. POMS DI 24150.001, DI 22505.001 et seq. This assessment is consistent with the Secretary’s published regulations. 20 C.F.R. § 404, Subpart P, App. 1 § 12.00(A), (D). We hold that plaintiffs have failed to state a claim upon which relief can be granted. The judgment dismissing plaintiffs’ first claim for relief is affirmed; the judgment of dismissal of the complaint for lack of subject matter jurisdiction under 12(b)(1) is vacated, and the ease is remanded to the district court for further proceedings. . In Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884 (3d Cir.1977), the Third Circuit explained the unique nature of a factual challenge to jurisdiction under 12(b)(1). [Hjere 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, 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. Id. at 891. . The district court went beyond the complaint in concluding that Social Security Ruling (SSR) 82-30 proves that the practices complained of are not the result of a secret policy. However, as we have noted, a secret policy is not a prerequisite to subject matter jurisdiction for plaintiffs who assert, as these plaintiffs do, \"live\" claims (i.e., where the claimant still has time to pursue the next level of the administrative review process or judicial review). The discussion in City of New York relating to a secret policy concerned tolling the statute of limitations involving \"lapsed” claims (i.e., where" }, { "docid": "10674154", "title": "", "text": "court lacks subject matter jurisdiction. Although a motion to dismiss on sovereign immunity grounds can be analyzed under Rule 12(b)(1), Hagen v. Sisseton-Wahpeton Cmty. Coll, 205 F.3d 1040, 1043 (8th Cir.2000), the question of whether the tribes’ sovereign immunity bars J.L. Ward from bringing this suit against Great Plains is a jurisdictional issue separate from subject matter jurisdiction. In re Prairie Island Dakota Sioux, 21 F.3d 302, 305 (8th Cir.1994) (“We find, therefore, that sovereign immunity is a jurisdictional consideration separate from subject matter jurisdiction ...”); Calvello v. Yankton Sioux Tribe, 899 F.Supp. 431, 435 (D.S.D. 1995) (determining first that the court had subject matter jurisdiction and then noting that “[t]he Court must next consider, however, the separate jurisdictional issue of whether [the plaintiffs] suit against the Tribe is barred by the doctrine of sovereign immunity.”). The United States Court of Appeals for the Eighth Circuit has drawn a distinction between facial and factual 12(b)(1) motions, explaining the applicable standard in each instance. See Osborn v. United States, 918 F.2d 724, 728-730 (8th Cir.1990). When faced with a factual 12(b)(1) motion like the one Great Plains has made, 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 the plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Id. at 730 (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)). Here, the parties have submitted evidence in support of and in resistance to the motion to dismiss, and the Court will consider such evidence as it relates to the jurisdictional challenge. B) Sovereign Immunity “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed" }, { "docid": "23323522", "title": "", "text": "waive subject matter jurisdiction, and we may consider subject matter jurisdiction claims at any time during litigation. See Latin American Property & Casualty Ins. Co. v. Hi-Lift Marina, Inc., 887 F.2d 1477, 1479 (11th Cir.1989). Therefore, we address the jurisdiction issue. Attacks on subject matter jurisdiction come in two forms: (1) facial attacks, and (2) factual attacks. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990) (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980)). Facial attacks on a complaint “require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in [plaintiffs] complaint are taken as true for the purposes of the motion.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990). Factual attacks challenge “the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.” Lawrence, 919 F.2d at 1529. This circuit has explained that in a factual attack, the presumption of truthfulness afforded a plaintiff under Federal Rule of Civil Procedure 12(b)(6) does not attach, and the court is free to weigh the evidence, stating: [in a factual attack upon subject matter jurisdiction] 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 — it’s 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. Lawrence, 919 F.2d at 1529 (quoting Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.1981)). Searfo argues that under Garcia v. Copenhaver, the jury, as fact-finder, should have determined the “single employer” issues for Title VII purposes. 104 F.3d 1256 (11th Cir.1997). Garcia’s reasoning, however, is inapposite to this case." }, { "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": "4024655", "title": "", "text": "court’s ability to exercise subject matter jurisdiction over this action, the court may look beyond the pleadings and examine affidavits and other documents in resolving the issues before it concerning subject matter jurisdiction. Osborn v. United States, 918 F.2d 724, 730 (8th Cir.1990) (citation omitted); cf. United States v. Scherping, 1992 WL 188817 at *2 (D.Minn. May 26, 1992) (party moving to dismiss under Rule 19 may need to present affidavits or other extra-pleading evidence of the absent party’s interest) (citing 5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure, § 1359 at 426-27 (2d ed. 1990)) (order not reported in the Federal Supplement). The court may weigh the evidence submitted in support of the Rule 12(b)(1) motion and use that evidence to evaluate the merits of the motion. The Eighth Circuit stated in Osborn that: [T]he ... 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 the 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. Id. (footnote omitted from the original) (quoting Mortensen v. First Fed. Sav. and Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)). Once the evidence is submitted, the court may “not simply rule that there is or is not enough evidence to have a trial on the issue.” Id. (citation omitted). The court must decide whether it has jurisdiction. Id. “The only exception is in instances when the jurisdictional issue is ‘so bound up with the merits that a full trial on the merits may be necessary to resolve the issue.’” Id. (quoting Crawford v. United States, 796 F.2d 924, 929 (7th Cir.1986)). The court" }, { "docid": "11925358", "title": "", "text": "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 a 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. Id at 891.. The Sixth Circuit has recognized this distinction and applied this standard to Rule 12(b)(1) challenges. DLX, Inc., 381 F.3d at 516; see also Rogers, 798 F.2d at 915 (stating that “on a Rule 12(b)(1) challenge to subject matter jurisdiction, the court is empowered to resolve factual disputes”). Here, Defendant’s Rule 12(b)(1) challenge is both a facial and factual attack upon this Court’s subject matter jurisdiction. Therefore, this Court is not required to presume that Plaintiffs’ allegations are true when deciding the factual attack. DLX, Inc., 381 F.3d at 516; see also Mortensen, 549 F.2d at 891. Rather, this Court will properly review the facts offered by Plaintiffs to support their allegations to determine whether this Court has subject matter jurisdiction. Upon review, this Court finds that Plaintiffs have not met this burden, and therefore this Court does not have subject matter jurisdiction over Plaintiffs’ LMRA or NLRA claims. 2. Section 301 of the LMRA Section 301(a) of the LMRA provides: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the" }, { "docid": "16424176", "title": "", "text": "subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002), cert. denied, 538 U.S. 999, 123 S.Ct. 1908, 155 L.Ed.2d 826 (2003). These two forms of attack differ. On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a rule 12(b)(6) motion: the court must consider the complaint’s allegations to be true. See Ruiz v. McDonnell, 299 F.3d at 1180; Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). But when the attack is factual, a district court may not presume the truthfulness of the complaint’s factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under rule 12(b)(1). In such instances, a court’s reference to evidence outside the pleadings does not convert the motion to a rule 56 motion. Alto Eldorado Partners v. City of Santa Fe, No. CIV 08-0175 JB/ACT, 2009 WL 1312856, at *8-9 (D.N.M. Mar. 11, 2009) (Browning, J.). As the United States Court of Appeals for the Fifth Circuit has stated: [T]he 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 plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Williamson v. Tucker, 645 F.2d at 412-13 (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). STANDARD FOR DECIDING A MOTION TO DISMISS UNDER RULE 12(b)(6) Rule 12(b)(6) allows a court to dismiss a complaint for failure to state a claim upon which it can grant" }, { "docid": "1890414", "title": "", "text": "claim for lack of subject matter jurisdiction.” Simanonok v. Simanonok, 787 F.2d 1517, 1519 (11th Cir.1986). Attacks on subject matter jurisdiction made pursuant to Federal Rule of Civil Procedure 12(b)(1) come in two varieties: “facial attacks” and “factual attacks.” Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir.1990). Facial attacks on the complaint require a court to scrutinize the pleadings and determine whether the plaintiff has sufficiently alleged subject matter jurisdiction and the allegations in the complaint are taken as true. Id. at 1529. Conversely, factual attacks challenge the existence of subject matter jurisdiction in fact, regardless of the pleadings. Id. When considering a factual attack, therefore, those matters that go beyond the pleadings, such as affidavits and testimony, are to be considered. Id. In a factual attack, a court’s power to make findings of facts and to weigh the evidence turn on whether the factual attack on jurisdiction also implicates the merits of the plaintiffs cause of action. Id. In Lawrence v. Dunbar, 919 F.2d at 1528-29, the Eleventh Circuit Court of Appeals noted that if the facts necessary to sustain jurisdiction do not implicate the merits of plaintiffs cause of action, then: [t]he 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 plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional claims. In contrast, if an attack on subject matter jurisdiction also implicates an element of the cause of action, then the district court should find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiffs ease. Id. In such instances, the defendant is forced to proceed under Federal Rule of Civil Procedure 12(b)(6)" }, { "docid": "1890415", "title": "", "text": "that if the facts necessary to sustain jurisdiction do not implicate the merits of plaintiffs cause of action, then: [t]he 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 plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional claims. In contrast, if an attack on subject matter jurisdiction also implicates an element of the cause of action, then the district court should find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiffs ease. Id. In such instances, the defendant is forced to proceed under Federal Rule of Civil Procedure 12(b)(6) or Federal Rule of Civil Procedure 56, both of which place severe restrictions on a court’s discretion. Id. Here, because the instant Motion (DE 26) simply raises a jurisdictional issue and does not seek to address the underlying merits of the instant action, it involves a factual, and not a facial, attack. See, e.g., Wepfer Marine, Inc., 344 F.Supp.2d 1120, 1123, (W.D.Tenn.2004) (treating a motion to dismiss as a factual attack for the purpose of addressing whether a limitation action was timely filed); Anderson v. United States, 245 F.Supp.2d 1217, 1221 (M.D.Fla.2002) (dismissing suit pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction because of non-compliance with statutory timing requirements); UFO Chuting of Hawaii, 233 F.Supp.2d 1254, 1256-57 (D.Hawai’i 2001) (treating a motion to dismiss for lack of subject matter jurisdiction as a factual attack for the purpose of addressing whether a limitation action was timely filed); Kiewit Pacific Co., 1994 WL 446967, at * 2-4 (N.D.Cal.) (treating a motion to dismiss for lack of subject matter jurisdiction as a" }, { "docid": "18406076", "title": "", "text": "state a claim. Consequently, the plaintiff objects to this court’s consideration of materials outside the complaint. Once subject matter jurisdiction is challenged, the plaintiff has the burden of establishing that jurisdiction exists. The plaintiff must validate the jurisdictional facts by competent proof or risk dismissal. Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir.1969). It is within the discretion of the court to determine how to proceed on jurisdictional questions, and the court “may consider materials outside the pleadings such as depositions or affidavits in determining whether the record demonstrates lack of subject matter jurisdiction.” Satz v. ITT Financial Corp., 619 F.2d 738, 742 (8th Cir.1980). The plaintiff in this case presented no evidence in support of the allegation that this court had subject matter jurisdiction; rather, the plaintiff rested on the bare pleadings. Subject matter jurisdiction may be facially or factually challenged. Where a 12(b)(1) motion attacks the facial insufficiency of the complaint, the court must consider the allegations of the plaintiff's pleadings as true. Thus, the protections afforded the plaintiff are similar to the procedural safeguards of a 12(b)(6) motion. Eaton v. Dorchester Development, Inc., 692 F.2d 727, 731 (11th Cir.1982); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). However, such protections are not present where the court reviews the existence of subject matter jurisdiction in fact. “The factual attack ... differs greatly for here the trial court may proceed as it never could under 12(b)(6) or [Rule] 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 a 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 the jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.” Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884," }, { "docid": "6330322", "title": "", "text": "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, 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. Mortensen v. First Federal Savings & Loan Association, 549 F.2d at 891. Accordingly, dismissal for lack of subject matter jurisdiction prior to trial, and certainly prior to giving the plaintiff ample opportunity for discovery, should be granted sparingly. Hospital Building Co. v. Trustees of Rex Hospital, 435 U.S. 738, 746-47, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976). This, of course, is not to suggest that a district court may never dismiss an antitrust suit for lack of subject matter jurisdiction. Where adequate time is given to complete discovery and all the jurisdictional facts are fully developed and placed before the court during an adversary hearing, a district court may, in a clear-cut case, dismiss an antitrust suit for lack of subject matter jurisdiction. See Rosemound Sand & Gravel Co. v. Lambert Sand & Gravel Co., 469 F.2d 416," }, { "docid": "7396950", "title": "", "text": "the following reasons: the plaintiff has not satisfied the prerequisites for judicial review set forth at 42 U.S.C. § 1395oo, which provides the exclusive avenue of jurisdiction over the action; and there is no justiciable controversy in connection with the validity of 42 C.F.R. § 405.474(b)(3)(i)(C). Blue Cross further contends that the regulation con cerning interest expense that the plaintiff seeks declared unconstitutional, 42 C.F.R. § 405.419(c), is not relevant to this action and in no way affects the plaintiff. The plaintiff on the other hand, has moved for summary judgment of the following two bases: 42 C.F.R. § 405.-474(b)(3)(i)(C)(2) be declared unlawful and 42 C.F.R. § 405.419(b)(2)(iii) and (c)(1) be declared unlawful as applied. For the reasons that follow, the defendants’ motion to dismiss will be granted. In a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R. Civ.P. 12(b)(1), “the court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction to hear the action.” 2A Moore’s Federal Practice ¶ 12.07 [2.-1] at 12-45 — 12-46. There are two types of challenges which may be made pursuant to Rule 12(b)(1): ... 12(b)(1) motions that attack the complaint on its face and 12(b)(1) motions that attack the subject matter jurisdiction in fact, quite apart from any pleadings. [In t]he facial attack ... the court must consider the allegations of the complaint as true. [In t]he factual attack, however, ... 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, the plaintiff will have the burden of proof that jurisdiction does in fact exist. Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3d Cir.1977). This action involves Part A of Title XVIII of the Social" }, { "docid": "23195910", "title": "", "text": "66 L.Ed.2d 217 (1980)) (citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)). “ ‘Factual attacks’, on the other hand, challenge ‘the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.’ ” Id. The present case involves a factual attack, and not a facial attack. On a factual attack of subject matter jurisdiction, a court’s power to make findings of facts and to weigh the evidence depends on whether the factual attack on jurisdiction also implicates the merits of plaintiffs cause of action. Lawrence, 919 F.2d at 1529. If the facts necessary to sustain jurisdiction do not implicate the merits of plaintiffs cause of action, then: [T]he 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 plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Lawrence, 919 F.2d at 1529 (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)). On the other hand, if an attack on subject matter jurisdiction also implicates an element of the cause of action, then: [T]he proper course of action for the district court ... is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiffs case_ Judicial economy is best promoted when the existence of a federal right is directly reached and, where no claim is found to exist, the case is dismissed on the merits. This refusal to treat indirect attacks on the merits as Rule 12(b)(1) motions provides, moreover, a greater level of protection to the plaintiff who in truth" }, { "docid": "20779212", "title": "", "text": "pursuant to Rule 19(a)(2) that the newly appointed ERISA trustee be made a party defendant. . GRC styles its Motion alternatively as one under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, or under Rule 12(c) for judgment on the pleadings. Raymond and Guzek invoke only Rule 12(c). There are two types of motions to dismiss for lack of subject matter jurisdiction that may be made pursuant to Rule 12(b)(1), \"those that attack the complaint on its face and those that attack subject matter jurisdiction as a matter of fact.” Petruska v. Gannon Univ., 462 F.3d 294, 302 n. 3 (3d Cir.2006). When a facial attack has been made, the court must consider the allegations of the complaint as true in the same manner as if it were deciding a motion under Rule 12(b)(6). Id. (citation omitted). However, a factual attack: 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 ... 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, the plaintiff will have the burden of proof that jurisdiction does in fact exist. Id. (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977)). GRC asserts that its mootness argument is factual attack on jurisdiction. (Def. Mem. at 5). Under Fed.R.Civ.P. 12(c), \"[ajfter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). The standard of review for a motion for judgment on the pleadings is identical to that of the motion to dismiss under Rule 12(b)(6). Turbe v. Gov’t of the Virgin Islands, 938 F.2d 427, 428 (3d Cir.1991) (citations omitted); Katzenmoyer v. City of Reading," } ]

[ { "docid": "23202159", "title": "", "text": "regardless of what generalized contract interpretation rules would suggest. Thus, Judge O’Conor did not err in giving such an instruction. “Force majeure” has traditionally meant an event which is beyond the control of the contractor. See Squillante and Congalton, Force Majeure, 80 Comm.L.J. 4, 5 (1979). The common law defense of impossibility due to Act of God requires the defendant to prove that an excusing event is beyond his control, id. at 5; and contractual force majeure provisions typically incorporate this requirement, see Eastern Air Lines v. McDonnell Douglas, 532 F.2d 957, 991 (5th Cir.1976). The term “reasonable control” has come to include two related notions. First, a party may not affirmatively cause the event that prevents his performance. The rationale behind this requirement is obvious. If a contractor were able to escape his responsibilities merely by causing an excusing event to occur, he would have no effective “obligation to perform.” See Squillante and Congalton, supra, at 4; 2 Anderson, Uniform Commercial Code § 2-615:17 (1972). The second aspect of reasonable control is more subtle. Some courts will not allow a party to rely on an excusing event if he could have taken reasonable steps to prevent it. See Oosten v. Hay Haulers Dairy Employees & Helpers Union, 45 Cal.2d 784, 291 P.2d 17, 20-21 (1955); 6 Corbin on Contracts, § 1342, at 328; Anderson, supra. The rationale behind this requirement is that the force majeure did not actually prevent performance if a party could reasonably have prevented the event from occurring. The party has prevented performance and, again, breached his good faith obligation to perform by failing to exercise reasonable diligence. See Oosten, supra at 21. The California Supreme Court has read into contractual force majeure provisions both aspects of “reasonable control” — good faith in not causing the excusing event and diligence in taking reasonable steps to ensure performance. In Oosten, supra, the parties had entered into a contract for the sale of milk. Clause 12 of the contract provided: In case of strike, lockout, or other labor trouble ... which shall render it impossible for [either party" } ]

[ { "docid": "10877025", "title": "", "text": "In addition, in the event that the property could not be exploited because of another party’s superior property rights or a deficit in title, the sublessor agreed to substitute other coal leases containing substantially equivalent recoverable coal reserves on terms no more onerous than the terms of the lease. The sublease agreement contained the following provision (hereinafter referred to as the \"force majeure provision”): FORCE MAJEURE: The failure of either party to perform its obligations under this Agreement for reasons beyond their resepective [sic] controls after using every reasonable effort to cure and remedy any problems or consequence thereof as the result of Acts of God, acts of the public enemy, insurrection, riots, strikes, labor disputes, lock-outs, siow-downs, fires, explosions, floods, shortage of railroad cars, inability to obtain bonds and permits for reasons beyond the control of the Sublessees (e.g. a state policy of non-issuance), interruptions of transportation, embargoes, orders or acts of military or civil authority or adverse weather conditions that render hazardous the performance of the operations contemplated hereby or unavailability of equipment or replacement parts shall not constitute a breach of this Agreement or a violation of its terms and conditions. Also included shall be the unavailability of commercially merchantable and mineable coal on the Property pursuant to the representations of the Sublessor herein and the inability to obtain state and federal mining permits. The party determining the force majeure shall give notice to the other party following its determination that such conditions [sic] exists, stating specifically the date of commencement of the condition, the basis for the condition, and its anticipated duration. The mining services agreement was to be executed by Shelton Coal, as the contract miner, and each investor. Pursuant to the terms of the mining' services agreement, the contract miner was given the sole and exclusive right to mine all merchantable coal from the leased property. The investors, in return, agreed to pay the contract miner $17.95 per ton for coal mined and delivered to the investors or their designee plus 70 percent of the net sales proceeds in excess of $25 per ton" }, { "docid": "15422281", "title": "", "text": "conditioned upon agreement to its normal force majeure clause, “covering acts beyond the control of either party, including failure or delay of seller’s supplier of product and transportation.” All parties agree that, pursuant to Kaiser’s initial proposal, Kaiser would have been excused from performing if the crude oil supply failed for any reason whatsoever, including diversion by Kaiser’s supplier to another buyer for a higher price. Both parties agree that Inter-Petrol originally protested the breadth of Kaiser’s economic force majeure proposal. Both parties also agree that a compromise was reached. It is the nature of the compromise which is in dispute. InterPetrol’s view of the compromise is as follows: Standard industry force majeure clauses excuse performance if an unforeseeable, involuntary event such as fire or shipwreck befalls the seller or its immediate supplier. According to InterPetrol, Kaiser’s immediate supplier was CPC, which means standard (non-economic) force majeure would have covered Kaiser and CPC. InterPetrol asserts that Kaiser merely wanted to extend standard, non-economic force majeure beyond CPC to others in the chain of supply. InterPetrol argues it agreed to extend non-economic force majeure to Kaiser’s supplier of crude, but only until the crude oil was loaded aboard ship in the Persian Gulf. Kaiser’s version of the compromise is much different. Kaiser acknowledges that InterPetrol initially objected to its proposed economic force majeure clause. When Kaiser stood firm, however, InterPetrol proposed a compromise where economic force majeure would apply provided it terminated once the crude was loaded in the Persian Gulf. According to Kaiser, standard or non-economic force majeure was to apply from that time forward. The interpretation of a contract is a mixed question of fact and law. United States, Etc. v. Haas & Haynie Corp., 577 F.2d 568, 572 (9th Cir.1978). The principles of contract interpretation to be applied are legal issues which this court reviews de novo. Id. The factual findings by the district court as to what the parties said and did, however, must be accepted unless clearly erroneous. Id. It is the latter with which we are concerned here. We are faced with an oral contract," }, { "docid": "22912607", "title": "", "text": "of frustration, and whether or not a buyer can ever assert the defense of impracticability under section 2-615 of the Uniform Commercial Code, these doctrines, so closely related to each other and to force majeure as well, see International Minerals & Chemical Corp. v. Llano, Inc., 770 F.2d 879, 885-87 (10th Cir.1985), cannot help NIPSCO. All are doctrines for shifting risk to the party better able to bear it, either because he is in a better position to prevent the risk from materializing or because he can better reduce the disutility of the risk (as by insuring) if the risk does occur. Suppose a grower agrees before the growing season to sell his crop to a grain elevator, and the crop is destroyed by blight and the grain elevator sues. Discharge is ordinarily allowed in such cases. See, e.g., Matousek v. Galligan, 104 Neb. 731, 178 N.W. 510 (1920); Pearce-Young-Angel Co. v. Charles R. Allen, Inc., 213 S.C. 578, 50 S.E.2d 698 (1948); cf. Olbum v. Old Home Manor, Inc., 313 Pa.Super. 99, 459 A.2d 757 (1983). The grower has every incentive to avoid the blight; so if it occurs, it probably could not have been prevented; and the grain elevator, which buys from a variety of growers not all of whom will be hit by blight in the same growing season, is in a better position to buffer the risk of blight than the grower is. Since impossibility and related doctrines are devices for shifting risk in accordance with the parties’ presumed intentions, which are to minimize the costs of contract performance, one of which is the disutility created by risk, they have no place when the contract explicitly assigns a particular risk to one party or the other. As we have already noted, a fixed-price contract is an explicit assignment of the risk of market price increases to the seller and the risk of market price decreases to the buyer, and the assignment of the latter risk to the buyer is even clearer where, as in this case, the contract places a floor under price but allows for" }, { "docid": "14860973", "title": "", "text": "or public disturbance, inability to obtain materials, supplies, rights-of-way on customary terms, permits, or labor, any act or omission by parties not controlled by the party having the difficulty, any act or omission (including failure to take gas) of a purchaser of gas from Buyer which is excused by any event or occurrence of the character herein defined as constituting force majeure, failure of gas supply, and any laws, orders, rules, regulations, acts, or restraints, of any governmental body or authority, civil or military, or any other causes beyond the control of the parties hereto. If, in the event Buyer is prevented from purchasing gas from Seller for a continuous period of one year as a result of force majeure, then Seller may terminate this contract and dispose of the remaining gas to other purchasers. In its Answer to the First Amended Complaint, ONG alleges that “[a]ny unfulfilled take-or-pay obligations which ONG may have under the Contract for the contract years 1982 through 1987 were suspended by force majeure, including actions of regulatory agencies, or such other cause of [a] nature not reasonably within ONG’s control,” Answer of Defendant ONG Western, Inc. to First Amended Complaint II26, p. 13, including a combination of the following events, which ONG alleges resulted in “a substantial disappearance of ONG’s markets for natural gas, as well as the markets for natural gas of those who customarily purchased natural gas from ONG,” id. at ¶ 14, p. 6: 1) Drastically increased natural gas prices were required to be paid to producers in the field as a result of enactment of the Natural Gas Policy Act of 1978; 2) Conservation efforts by and fuel switching capabilities of natural gas consumers increased; 3) Discoveries of new supplies of natural gas and deliverability from such supplies increased; 4) The world-wide price of crude oil and crude oil products drastically declined; 5) Economic activity in the nation, and particularly Oklahoma, severly declined, and to the present time has not recovered in Oklahoma; 6) A large surplus of natural gas developed; and 7) Unforeseen regulatory changes occurred which, together with" }, { "docid": "14860962", "title": "", "text": "a lesser quantity as a result of a force maj-eure event. In this regard, ONG suggests that the force majeure clause in question should be construed in a manner analogous to the Tenth Circuit’s construction of take- or-pay, force majeure and “adjustment to minimum bill” clauses in International Minerals & Chemical Corp. v. Llano, Inc., 770 F.2d 879 (10th Cir.1985), cert. denied, 475 U.S. 1015, 106 S.Ct. 1196, 89 L.Ed.2d 310 (1986). Defendant ONG further argues that it did not assume the risk of the force majeure event of intervening regulation. Assumption of the risk of a specified force majeure event is, ONG posits, logically inconsistent with the purpose of a force majeure clause, which is to shift risks and limit the parties’ obligations. See Introductory Note to Restatement (Second) of Contracts, ch. 11, p. 309 (1981). ONG notes that the Uniform Commercial Code contemplates that the parties may by agreement expand the parameters of the legal excuse from performance provided in Section § 2-615. See Official Code Comment 8 to U.C.C. § 2-615, codified at Okla.Stat. title 12A, § 2-615. Finally, contrary to Sabine’s argument, ONG argues that a force maj-eure event need not be unforeseeable. Relying on Eastern Air Lines, Inc. v. McConnell Douglas Corp., 532 F.2d 957, 992 (5th Cir.1976) and Atlantic Richfield Co. v. ANR Pipeline Co., 768 S.W.2d 777 (Tex.App.1989), it suggests that parties are at liberty to define force majeure as they wish and to include foreseeable events as events of force majeure. The sole question in ONG’s view is whether the elements of the defense have been satisfied. ONG submits that because it has presented facts to support the defense, that is a jury question. The gas purchase contract in question was entered into on March 20, 1978 by Defendant and Plaintiff’s wholly-owned subsidiary whose interest in the well covered by the contract, the Sarkeys 1-32 well, was subsequently acquired by Plaintiff. The term of the contract is twenty (20) years. In precatory language, it is recited that the Seller (Sarkeys, Inc., now Sabine) is “desirous of obtaining a market for the gas" }, { "docid": "14860984", "title": "", "text": "ONG of Orders of the Corporation Commission establishing their wells’ status qualifying them for Priority One, Two or Three. It does not unequivocally state that ONG Western, Inc.’s supply exceeds its market demand and that curtailments are necessary, but this is at least a reasonable inference from the notice. Nor does the notice state what amount of curtailment is necessary. But whether this notice contains “reasonably full particulars” of a force majeure event or a partial inability to perform by virtue of Oklahoma Corporation Commission Rule 1-305 and/or a decline in market demand, assuming such events fall within the force majeure clause, is a question of fact for the jury. Plaintiff’s argument that an alleged act of force majeure does not relieve ONG of its alternative obligation to pay for gas not taken, whatever its viability may be with respect to this defense of commercial impracticability, must be rejected as to this defense. The force majeure clause, as Defendant suggests, unambiguously excuses both the obligation to take and the obligation to pay when gas cannot be taken for a reason within the clause. In so concluding, the Court is aware that the Tenth Circuit in International Minerals & Chemical Corp. v. Llano, Inc. construed a similar force majeure clause and an “adjustment of minimum bill” clause in a take-or pay contract in a manner consistent with and by reference to the doctrine of commercial impracticability, to the effect that a force majeure event — complete or partial inability to perform or comply with any obligations or conditions of the contract as a result of force majeure or any other cause beyond the party’s reasonable control — excuses taking but not paying. It logically follows that that Court would require that a party be both unable to take and unable to pay before the force majeure and “adjustment to minimum bill” provisions would have any effect. This Court cannot conceive of any event or cause within the contemplation of the force majeure clause which would render a party unable to pay. Thus, it would appear that such a construction might render" }, { "docid": "9433535", "title": "", "text": "in the Middle East, but none of these factors excuses TWA from its obligations. First, TWA could have negotiated for a force majeure clause in the contract. This was not done and such a clause cannot be read into the contract. While we need not address this question, it is not even clear whether the brief Gulf War would have been sufficient to implicate such a clause. Moreover, all of the alleged factors impacting upon TWA’s profits were clearly foreseeable and simply represent the risk of doing business in an international forum. Since as early as 1973, when the OPEC oil embargo took place, it has been quite clear that this country unfortunately is extremely dependent upon foreign oil and that our fuel prices are subject to the whim of that cartel. Similarly, TWA cannot argue that the threat of war in the Middle East is something of which it was unaware. The people of that region have been at war for thousands of years and recent history has been no different. The threat of terrorism is also nothing new. TWA is not entitled to relief from meeting its obligations since all the factors it points to were well within the foreseeable when it entered the Agreement. See Kel Kim Corp. v. Central Mkts., Inc., 70 N.Y.2d 900, 519 N.E.2d 295, 296, 524 N.Y.S.2d 384, 385 (1987) (impossibility excuses performance only if “produced by an unanticipated event that could not have been foreseen or guarded against in the contract”). In fact, looking at the cost of air travel today, international airlines already factor these risks into their fares. For all the foregoing reasons, plaintiff’s motion for summary judgment is granted. Plaintiff will settle an order and judgment consistent with this opinion. SO ORDERED. . At oral argument, we were told that approximately sixty-two of the engines are presently available for planes in addition to the ten in question. It is not clear how many planes are utilizing the sixty-two engines and how many are simply held in reserve. . TWA joined issue on April 15. . The beneficiaries’ suit, filed" }, { "docid": "14860985", "title": "", "text": "be taken for a reason within the clause. In so concluding, the Court is aware that the Tenth Circuit in International Minerals & Chemical Corp. v. Llano, Inc. construed a similar force majeure clause and an “adjustment of minimum bill” clause in a take-or pay contract in a manner consistent with and by reference to the doctrine of commercial impracticability, to the effect that a force majeure event — complete or partial inability to perform or comply with any obligations or conditions of the contract as a result of force majeure or any other cause beyond the party’s reasonable control — excuses taking but not paying. It logically follows that that Court would require that a party be both unable to take and unable to pay before the force majeure and “adjustment to minimum bill” provisions would have any effect. This Court cannot conceive of any event or cause within the contemplation of the force majeure clause which would render a party unable to pay. Thus, it would appear that such a construction might render the force maj-eure clause nugatory. Conversely, if a party is rendered only unable to take as a result of a cause or occurrence defined in the force majeure clause and such party is not then excused from paying, the force majeure clause has no effect; if the clause were removed from the contract, application of the take-or-pay clause alone would yield the same result. Plaintiff’s argument that an event of force majeure must be unforeseeable must be rejected. Nowhere does the force majeure clause specify that an event or cause must be a unforeseeable to be a force majeure event. The focus of the clause is upon a party’s ability to control rather than its ability to foresee the alleged cause. Plaintiff argues that ONG has failed to allege any act of a governmental body or authority which would constitute an act of force majeure and, to the extent it has alleged such an act, has failed to submit evidence necessary to the existence of a defense predicated on the force majeure clause, and that" }, { "docid": "14860987", "title": "", "text": "a mere price increase cannot constitute force majeure because Defendant assumed the risk of such increase. Both of these arguments depend to a lesser or greater extent on interpretation of the force majeure clause in issue. Although ONG invokes in its pleading and in evidence submitted in response to Plaintiff’s motion a plethora of statutes, regulations and orders which singly or in conjunction with each other purportedly rendered ONG unable to take gas during the year in question, the only law or rule of a governmental body which ONG asserts constitutes or is a basis for a force majeure event of which Defendant arguably gave Plaintiff notice, see above, is Rule 1-305 of the Oil and Gas Rules of the Oklahoma Corporation Commission. That Rule by its terms permits rather than requires a purchaser to reduce its takes when permitted production from all wells in a common source of supply from which a purchaser is required to take exceeds that purchaser’s market demand. In the event a purchaser elects to reduce its takes from wells within a common source of supply, the Rule does require that the reduction be made according to the priority schedule set forth in subsection B and that any reduction in taking from wells within a given priority be done ratably among those wells, see O.C.C. o & G Rule 1-305(C); Golsen ONG Western Inc., 756 P.2d at 1219. Thus, Rule 1-305, although a rule of a governmental body or authority and therefore a “force majeure” within the meaning of the force majeure clause, did not and can not render ONG unable to perform any, i.e. either, of its obligations under the contract when (if) its market demand was less than production it was required to take from all wells within the same source of supply with the Sarkeys well. The force majeure clause in the contract is only operative if a party “is rendered unable, wholly or in part, by force majeure or any other cause not reasonably within its control, to perform or comply with any obligations or conditions” of the contract. Of course," }, { "docid": "14860993", "title": "", "text": "price, see Golsen v. ONG Western, Inc., 756 P.2d at 1213—14; Kaiser-Francis Oil Co. v. Producer’s Gas Co., 870 F.2d at 566; Universal Resources Corp. v. Panhandle Eastern Pipe Line Co., 813 F.2d 77, 80 (5th Cir.1987), nugatory. Cf. Golsen v. ONG Western, Inc., 756 P.2d at 1213-14 (construction of “failure of market” urged by defendant would negate lengthy and detailed price redetermination and take-or-pay provisions). Thus, even if the term “unable” as used in the force majeure clause in question was reasonably susceptible to the interpretation Defendant implicitly urges, the Court’s task of construing the force majeure clause in conjunction with the entire contract, each clause helping to interpret the others, and giving effect, whenever practicable, to each clause, see Okla.Stat. title 15, §§ 157, 166 & 168; Golsen v. ONG Western, Inc., 756 P.2d at 1214; Mercury Investment Co. v. F.W. Woolworth Co., 706 P.2d 523, 529 (Okla.1985); Shepherd v. French, 612 P.2d 727, 729 (Okla.App.1980); see also Ferrell Construction Co. v. Russell Creek Coal Co., 645 P.2d 1005, 1007 (Okla.1982); Walker v. Telex Corp., 583 P.2d 482, 485 (Okla. 1978) (construction of ambiguous contract is a matter of law for the court); would mandate rejection of an interpretation that “unable to perform” as used in the force majeure clause means “unable to perform except at a loss.” Cf. Golsen v. ONG Western, Inc., 756 P.2d at 1214 (a clause will not be accorded a meaning which negates or is in conflict with major portions of a contract or is contrary to the parties’ general intent); Mercury Investment Co. v. F.W. Woolworth Co., 706 P.2d at 529 (terms in contract given their plain and ordinary meaning unless used by parties to convey a technical sense); Okla.Stat. title 15, § 160 (same). But cf. International Minerals & Chemical Corp. v. Llano, Inc., 770 F.2d at 886 (applying New Mexico law). Finally, with respect to ONG’s affirmative defense based on the force majeure clause, Plaintiff argues that ONG is somehow collaterally estopped from alleging that failure of markets was a force majeure event. Plaintiff’s argument in fact makes a case" }, { "docid": "17685955", "title": "", "text": "(which alone might be sufficient to defeat plaintiffs summary judgment motion on this issue) and instead look to whether the economic policies of the federal government in the early 1980’s were of a nature to qualify Cascade for relief under the B8.21 force majeure provision. While there is no case from this court specifically addressing whether changes in federal monetary policies constitute an act of government for purposes of a force majeure clause, cases addressing similar issues in other federal courts have consistently held that market-changing governmental policies should not be considered acts of government for force majeure clause purposes. In Langham-Hill Petroleum Inc. v. Southern Fuels Company, 818 F.2d 1327 (4th Cir.1987), the government of Saudi Arabia, in an attempt to regain its share of the world oil market, caused a collapse in world oil prices that made appellant Langham’s fixed price contract to buy oil from appellee disastrously unprofitable. Langham breached this contract and argued that a force majeure clause found in the contract should validate his refusal to honor his contractual obligations. The force majeure clause in the Langham contract applied if a party was rendered unable to perform by a “cause of any kind not reasonably within its control,” including, among other things, “any restrictions or restraints imposed by laws, orders, rules, regulation or acts of any government or governmental body or authority.” Id. at 1329 n. 1. The Langham court found that the act of the Saudi government did not make appellant unable to perform. It merely made performance unprofitable. It should also be noted that this effect was quite indirect, unlike an order embargoing timber or restricting its removal. “A force majeure clause is not intended to buffer a party against the normal risks of a contract. The normal risk of a fixed price contract is that the market will change,” wrote the court. Id. at 1330 (quoting Northern Indiana Public Service Co. v. Carbon County Coal Co., 799 F.2d 265, 275 (7th Cir.1986)). Likewise, in Cascade, the government’s acts (its monetary policies) may have contributed to the changes in the timber market which" }, { "docid": "7810327", "title": "", "text": "Cir. 1969). The jury’s finding as to substantial performance is supported by substantial evidence. Most significant is the undisputed fact that a well of contract proportions was completed by January 1, 1978. The district court accordingly did not abuse its discretion in refusing to direct a verdict for Post on this issue. C. Excessiveness of Verdict Post contends that the jury’s verdict, as a matter of law, exceeds the maximum amount recoverable under the applicable contract provisions. As a preliminary matter, Matador claims that Post has waived these objections because of his failure to object to the form of submission of the damage issues or to propose additional, limiting instructions. Interpretation of a contract, however, is a matter of law reviewable de novo on appeal, First National Bank of Miami v. Insurance Company of North America, 495 F.2d 519 (5th Cir. 1974), and an appellate court may sua sponte review a jury verdict to determine if it exceeds the maximum legally cognizable recovery. See, Jamison Co., Inc. v. Westvaco Corp., 526 F.2d 922 (5th Cir. 1976). The only category of damages objected to by Post that we can say with confidence is unavailable is the amount claimed under the force majeure clauses. The daywork drilling contract provides that Post will pay Matador $1,000, roughly one-third of the operating day rate, for each day operations are suspended by a condition of force maj-eure. Force majeure is defined in paragraph 16 of the contract as follows: Neither Operator nor Contractor shall be liable to the other for any delays or damage or any failure to act due, occasioned or caused by reason of any laws, rules, regulations or orders promulgated by any federal, State or Local governmental body or the rules, regulations, or orders of any public body or official purporting to exercise authority or control respecting the operations covered hereby, including, the procurance or use of tools and equipment, or due, occasioned or caused by strikes, action of the elements, water conditions, inability to obtain fuel or other critical materials, or other causes beyond the control of the party affected thereby." }, { "docid": "11661962", "title": "", "text": "suggests that it understood that its duty to pay royalties was independent of Melanie’s to “record,” and the district court could properly marshal this evidence of practical interpretation to support its construction of the parties’ obligations. As the district court found, Kama Rip-pa’s obligation to make royalty payments under the Songwriter’s Agreement and Melanie’s to “record” three songs under the Letter Agreement are independent of one another. Melanie’s possible breach of her duty, the subject of proceedings pending in the district court, would not excuse Kama Rippa’s failure to perform its duty. The court’s exclusion of extrinsic evidence was warranted in view of the objective clarity of the instruments. Since resolution of this interdependence claim placed no material issue of fact in genuine dispute, summary judgment was appropriate in this respect. Fed.R.Civ.P. 56(c). III. IMPOSSIBILITY The appellant also seeks to justify its late payment on grounds of force majeure: Payment was “impossible,” in the contractual sense, 6 A. Corbin, Contracts § 1325 (2d ed. 1962), because it would involve violation of a court order. Since this court order, an attachment of Kama Rippa’s indebtedness to Melanie, was procured by Kama Rippa itself, a defense of impossibility is as audacious as it is frivolous. The party pleading impossibility as a defense must demonstrate that it took virtually every action within its powers to perform its duties under the contract. 407 East 61st Garage, Inc. v. Savoy Fifth Avenue Corp., 23 N.Y.2d 275, 281-282, 296 N.Y.S.2d 338, 343-344, 244 N.E.2d 37 (1968); Cameron-Hawn Realty Co. v. City of Albany, 207 N.Y. 377, 381, 101 N.E. 162 (1913); Standard Oil Co. of New York v. Central Dredging Co., 225 App.Div. 407, 410, 233 N.Y.S. 279, 282 (3d Dept.), aff’d mem., 252 N.Y. 545, 170 N.E. 137 (1929). To recognize impossibility where, as in the ease before us, the party pleading the defense has intentionally incapacitated itself from performing would defy this case law and all good sense. Cf., Spanos v. Skouras Theatres Corp., 364 F.2d 161, 168-169 (2d Cir.) (en banc), cert. denied, 385 U.S. 987, 87 S.Ct. 597, 17 L.Ed.2d 448 (1966)." }, { "docid": "14860994", "title": "", "text": "Telex Corp., 583 P.2d 482, 485 (Okla. 1978) (construction of ambiguous contract is a matter of law for the court); would mandate rejection of an interpretation that “unable to perform” as used in the force majeure clause means “unable to perform except at a loss.” Cf. Golsen v. ONG Western, Inc., 756 P.2d at 1214 (a clause will not be accorded a meaning which negates or is in conflict with major portions of a contract or is contrary to the parties’ general intent); Mercury Investment Co. v. F.W. Woolworth Co., 706 P.2d at 529 (terms in contract given their plain and ordinary meaning unless used by parties to convey a technical sense); Okla.Stat. title 15, § 160 (same). But cf. International Minerals & Chemical Corp. v. Llano, Inc., 770 F.2d at 886 (applying New Mexico law). Finally, with respect to ONG’s affirmative defense based on the force majeure clause, Plaintiff argues that ONG is somehow collaterally estopped from alleging that failure of markets was a force majeure event. Plaintiff’s argument in fact makes a case for the inapplicability of any issue preclusive effects of the Golsen court’s holding concerning what does not constitute a “failure of markets” as that term was used in the contract at issue therein and at once makes a purely contract-based argument: Unlike Golsen, where the Oklahoma Supreme Court held that the term “failure of markets” in a force majeure provision did not authorize relief from performance,' the force majeure clause of the contract [in issue] does not even contain a “failure of markets” provision. Brief in Support of Plaintiff’s Motion for Partial Summary Judgment (hereinafter “Plaintiff’s Brief) at pp. 32-33 (emphasis added). Defendant herein is not and could not rely on a non-existent “failure of markets” provision in the force majeure clause, but that has nothing to do with collateral estoppel. To the extent some decline in market demand is integral to ONG’s force majeure defense, whether as a result of a governmental regulation or as a “cause of any kind not reasonably within its control,” collateral estoppel is unapplicable because of a lack of" }, { "docid": "23355322", "title": "", "text": "v. Fairchild Indus., Inc., 797 F.2d 727, 735 (9th Cir.1986). The circumstances surrounding Sicor’s discussions with Mercian permit conflicting and equally plausible inferences regarding the proper interpretation of the Second Supply Agreement. Accordingly, summary judgment was inappropriate on this issue. b. Notice and Opportunity to Cure In addition, Sicor’s conduct following the closing of its plant in Italy appears to be consistent with the contractual provision intended by the parties to cover supply failures of the sort involved here, viz., the force maj-eure clause in section 7 of the Second Supply Agreement. Section 7 provides that “neither party shall be liable or be in breach of any provision of this Agreement if and to the extent that any failure or delay on its part to perform any obligation hereunder is because of force majeure or any other cause beyond the reasonable control of such party.” Section 7 defines such causes to include, inter alia, “legal restraints or actions imposed by governmental authorities.” Facially, this provision could embrace an injunction or sequestration order, the forms of restraint at issue here. Section 7 obligates the party restrained by force majeure to “move to eliminate the effect thereof to the extent possible.” A triable issue thus exists as to whether Sicor, by seeking alternate sources of supply, was acting in conformity with this requirement when CBVT entered into an exclusive arrangement with Erbamont. Section 7 obligates CBVT to accede to such efforts on the part of Sicor, if made “with all reasonable dispatch,” for at least one month. In addition, section 8(c) of the Second Supply Agreement requires the parties to meet in the event the condition of force majeure persists for one month or longer. Section 8 further provides that if “no settlement is concluded within two additional months regarding future course of action,” the party not claiming force majeure may terminate the agreement upon written notice to the other party. The record indicates that Sicor did not receive proper notice of termination as required by section 8(c) until CBVT’s letter of April 10, 1991. In this letter CBVT informed Sicor that" }, { "docid": "14860961", "title": "", "text": "at a profit as a “failure of markets” in a force majeure clause by virtue of the determination of this issue adversely to ONG Western, Inc. in the case of Golsen v. ONG Western, Inc., 756 P.2d 1209 (Okla.1988). Defendant ONG in response contends that on May 4, 1983, it notified working interest owners of the Sarkeys No. 1-32 well, gas production from which is the subject of the take-or-pay contract in issue, that ONG had instituted ratable takes of gas under Okla.Stat. title 52, § 240, and that by letter dated November 15, 1983, ONG notified Sabine of its intent to implement the priority purchase schedule established by the Corporation Commission. Defendant asserts that the sufficiency of the notice, i.e., whether these letters gave “reasonably full particulars” of the force maj-eure event, is a question of fact for the jury. ONG also maintains that by the express language of the force majeure clause, ONG’s payment obligation is also excused or reduced whenever ONG is unable to take gas or is able to take only a lesser quantity as a result of a force maj-eure event. In this regard, ONG suggests that the force majeure clause in question should be construed in a manner analogous to the Tenth Circuit’s construction of take- or-pay, force majeure and “adjustment to minimum bill” clauses in International Minerals & Chemical Corp. v. Llano, Inc., 770 F.2d 879 (10th Cir.1985), cert. denied, 475 U.S. 1015, 106 S.Ct. 1196, 89 L.Ed.2d 310 (1986). Defendant ONG further argues that it did not assume the risk of the force majeure event of intervening regulation. Assumption of the risk of a specified force majeure event is, ONG posits, logically inconsistent with the purpose of a force majeure clause, which is to shift risks and limit the parties’ obligations. See Introductory Note to Restatement (Second) of Contracts, ch. 11, p. 309 (1981). ONG notes that the Uniform Commercial Code contemplates that the parties may by agreement expand the parameters of the legal excuse from performance provided in Section § 2-615. See Official Code Comment 8 to U.C.C. § 2-615, codified" }, { "docid": "3657063", "title": "", "text": "has the burden of proof. In Brooks-Cailaway, a suit was brought by the nonperforming party to recover money deducted from the contract price as liquidated damages for delay in the completion of a contract for construction of levees on the Mississippi River. 318 U.S. at 121, 63 S.Ct. at 475. The contract contained a force majeure clause which required that events delaying performance be “beyond the control and without the fault or negligence of the contractor.” Id. at 120-21 n. 1, 63 S.Ct. at 475 n. 1. The Supreme Court upheld a decision by the Court of Claims that the showing of the occurrence of an alleged force majeure event resulting in a delay in delivery did not constitute a per se claim to force majeure relief. To invoke force majeure and excuse performance, the nonperforming party’s duty extends to showing what action it took to perform the contract regardless of the occurrence of the excuse. Id. Within a warranty contract, a force majeure clause is appropriate; Gulf Oil I, 563 F.2d at 595; it excuses a party’s nonperformance due to events outside of its control and without its fault or negligence. However its application differs from that of non-warranty ordinary contract. Force majeure events within a warranty contract can excuse the supplier’s nonperformance for events beyond its control only to the extent that the supplier has shown that it had available resources to meet its warranty obligation. Thus, the supplier has the burden of proving that it had a quantity available greater than the maximum amount that could be demanded from it. When force majeure events affect the availability of both the regular source of supply as well as the reserve, and damage the system of delivery, the supplier’s nonperformance is an excuse to delivery of the warranted amounts. This court found in Gulf Oil I that the warranted daily quantity that Gulf was to deliver to Texas Eastern was a maximum of 625 Mmcf daily, unless Texas Eastern demanded less. Gulf Oil I, 563 F.2d at 602. The Commission’s error in defining the volumes of gas attributable to" }, { "docid": "23036385", "title": "", "text": "than two general offshore Louisiana lease sales between 1962 and 1972 constituted an act of force majeure within the meaning of the contract. Specifically, Gulf points to this language in the force majeure clause: [The term “force majeure”] shall . include (a) in those instances where either party hereto is required to obtain servi-tudes, rights of way grants, permits or licenses to enable such party to fulfill its obligations hereunder, the inability of such party to acquire ... at reasonable cost and after the exercise of reasonable diligence, such servitudes, rights of way grants, permits or licenses Gulf contends that because an offshore gas lease is a “servitude” under Louisiana law, State ex rel. Bush v. United Gas Public Service Co., 185 La. 496, 169 So. 523 (1936); Arent v. Hunter, 171 La. 1059, 133 So. 157 (1931), Gulf’s inability to acquire offshore leases falls within this definition of force majeure. Alternatively, Gulf contends that even if the doctrine of ejusdem generis indicates that “servitudes,” together with “rights of way grants, permits or licenses,” is intended to refer only to easements necessary for construction of production or transportation facilities, the failure to sanction offshore leases comes within another part of the contract definition of force majeure: “any other causes, whether of the kind herein enumerated. or otherwise, not within the control of the party claiming suspension.” (Emphasis supplied.) Gulf’s argument, however, requires that we completely ignore the determinative proviso of the force majeure clause: provided, further, that in no event shall [the] term [“force majeure”] mean or include partial or entire failure or depletion of gas reserves or sources of supply of gas. We must give effect to this specific provision rather than to the more general language on which Gulf relies. See, e. g., Capitol Bus Lines Co. v. Blue Bird Coach Lines, Inc., 478 F.2d 556, 560 (3d Cir. 1973). In an effort to avoid the clear exclusion from the force majeure clause of “failure . of gas reserves or sources of supply of gas,” Gulf argues in its reply brief that gas leases must first be acquired" }, { "docid": "23036384", "title": "", "text": "warranty in this case is analogous to a warranty deed. As Professor Corbin says, “A seller of land or goods who conveys by warranty deed, or who otherwise expressly warrants title or quality or condition, does not escape from his warrant by proving that he reasonably believed that defects did not exist. Even though he was not conscious that there was risk, he was at least aware of the extent of his express warranty.” 3 Corbin on Contracts § 598 at 591-92 (1960) (footnote omitted). Accord, 6 S. Williston and G. Thompson, Williston on Contracts § 1934 at 5417 (rev. ed. 1938). Having warranted the availability of 625,-000 MCF of natural gas per day, Gulf may not now assert a defense of mistake. We will affirm the Commission’s decision on this issue. VI. FORCE MAJEURE [13] Gulf argues that it is excused from delivery of the full 625,000 MCF per day under the terms of the force majeure clause of the contract. In Gulf’s view, the failure of the Department of Interior to hold more than two general offshore Louisiana lease sales between 1962 and 1972 constituted an act of force majeure within the meaning of the contract. Specifically, Gulf points to this language in the force majeure clause: [The term “force majeure”] shall . include (a) in those instances where either party hereto is required to obtain servi-tudes, rights of way grants, permits or licenses to enable such party to fulfill its obligations hereunder, the inability of such party to acquire ... at reasonable cost and after the exercise of reasonable diligence, such servitudes, rights of way grants, permits or licenses Gulf contends that because an offshore gas lease is a “servitude” under Louisiana law, State ex rel. Bush v. United Gas Public Service Co., 185 La. 496, 169 So. 523 (1936); Arent v. Hunter, 171 La. 1059, 133 So. 157 (1931), Gulf’s inability to acquire offshore leases falls within this definition of force majeure. Alternatively, Gulf contends that even if the doctrine of ejusdem generis indicates that “servitudes,” together with “rights of way grants, permits or licenses,” is" }, { "docid": "14860972", "title": "", "text": "the inability so caused and such party so rendered unable shall be relieved of liability and shall suffer no prejudice for failure to perform the same during such period, it being understood that Buyer’s minimum annual obligation to take or pay for gas hereunder shall be reduced by the volume which Buyer, under normal circumstances, would have taken from the well during the period of time the inability exists; provided, obligations to make payments then due for gas delivered hereunder shall not be suspended, and in other cases, the cause of suspension (other than strikes, lockouts, or labor disputes) shall be remedied insofar as possible with reasonable dispatch. Settlement of strikes, lockouts, and labor disputes shall be wholly within the discretion of the party having the difficulty. The term “force majeure” shall include, without limitation by the following enumeration, acts of God and of the public enemy, the elements, freezing of wells or lines of pipe, repairing or altering machinery or lines of pipe, fires, accidents, breakdowns, strikes, labor disputes, and any other industrial, civil or public disturbance, inability to obtain materials, supplies, rights-of-way on customary terms, permits, or labor, any act or omission by parties not controlled by the party having the difficulty, any act or omission (including failure to take gas) of a purchaser of gas from Buyer which is excused by any event or occurrence of the character herein defined as constituting force majeure, failure of gas supply, and any laws, orders, rules, regulations, acts, or restraints, of any governmental body or authority, civil or military, or any other causes beyond the control of the parties hereto. If, in the event Buyer is prevented from purchasing gas from Seller for a continuous period of one year as a result of force majeure, then Seller may terminate this contract and dispose of the remaining gas to other purchasers. In its Answer to the First Amended Complaint, ONG alleges that “[a]ny unfulfilled take-or-pay obligations which ONG may have under the Contract for the contract years 1982 through 1987 were suspended by force majeure, including actions of regulatory agencies, or" } ]

[ { "docid": "23199075", "title": "", "text": "own employees as divers. Thus, Cities Service did not own the vessel, the drilling equipment, or the cable that parted. Nor did it employ any divers, crane operators or other diving or drilling personnel. The only Cities Service employee at the drilling site was Jim Quigel. His role was that of the usual “company man” in the offshore oil patch. He monitored the progress of the work of the independent contractors, making sure that the result was what the oil company had bargained for. This would include a concern whether the well was drilled in the proper location, but not in detail how it was done. Although he could have ordered the work stopped if he observed an obviously dangerous situation, inspections of equipment and the choice of safe work methods were understood by all to be the responsibility of Zapata, and as to diving equipment and procedures, Oceaneering. Zapata had a toolpusher, and Oceaneering had a diving supervisor, both of whom called the shots in their respective realms. Quigel had no actual control over or responsibility for the details of the drilling and diving work, but merely inspected the progress. Neither did Quigel control the operation of the particular procedure in which Wallace was injured. He was in the vicinity of the diving station on the vessel in order to see that the second well was correctly placed. However, there was no evidence that he had been aware that a previously discarded and weak cable was used to lift the template. Nor did he know that a diver was or would be riding up on the template. This Court has consistently held on similar facts that a principal, such as Cities Service, who hires independent contractors over which he exercises no operational control has no duty to discover and remedy hazards created by its independent contractors. Moser v. Texas Trailer Corp., 623 F.2d 1006, 1014-15 (5th Cir.1980); McCormack v. Noble Drilling Corp., 608 F.2d 169, 175 (5th Cir.1979); W. Prosser, The Law of Torts § 71 (4th ed. 1971); Restatement (Second) of Torts § 409, § 414, comment at" } ]

[ { "docid": "14170060", "title": "", "text": "sort of control to which section 414 is directed: for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the „work stopped or resumed, to inspect its progress or to receive reports . . . . Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. (Emphasis added.) The court below cogently related the import of Comment c to the case at bar: Thus, as comment “C” points out, an employer who retains only a general right to order that work be stopped or resumed and the right to inspect the progress of work to — let me correct that — to assure compliance with specifications owes no duty of care to the employees of the independent contractor, concerning the manner in which his work is executed. Only when a significant degree of control is retained over the manner in which his work is performed, is the duty under Section 414 triggered for vessel owners. Here, plaintiff has evidence on the record that the captain of the ship generally has the power to control any activity on board his vessel, but plaintiff’s evidence proves no more than that. Plaintiffs expert is an expert in stevedoring and his knowledge of the authority of ships’ officers is very general. There was no testimony as to the specific authority of Chief Mate Caramanlis over the discharge operation and the jury may' not on the evidence in this record infer from the fact of the chief mate’s observation of the operation that he controlled the operative details of a discharge. Certainly, evidence of such pervasive control could have been adduced by the plaintiffs in the deposition taken of Caramanlis or by some other readily available method. In sum, we assume that 414 of the Restatement of Torts 2 is part of the" }, { "docid": "4424281", "title": "", "text": "employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. Restatement (Second) of Torts § 414, comment c (1965). The Arkansas courts follow this rule, finding liability where the employer of an independent contractor retains control of the work. See Aluminum Ore Co. v. George, 186 S.W.2d at 658. In one Arkansas case, Erhart v. Hummonds, 232 Ark. 133, 334 S.W.2d 869 (Ark.1960), several architects were held liable for negligently inspecting and supervising some excavation work. The architects were employed to supervise construction, they had authority to stop the work when necessary, and the work involved an inherent danger known to them. Id. 334 S.W.2d at 872. The government cites Jackson v. Petit Jean Electric Co-op, 268 Ark. 1076, 599 S.W.2d 402 (Ark.App.1980), aff'd, 270 Ark. 506, 606 S.W.2d 66 (1980), as support for its position that Arkansas law does not recognize plaintiffs’ theory of liability. The district court cited Jackson in support of the plaintiffs’ theory. Our careful reading of Jackson concurs with that of the district court. In Jackson, Petit Jean Electric Coop had hired Jackson’s employer, Johnson Construction (an independent contractor), to rebuild lines in its electric transmission system. Jackson was injured when he came into contact with an energized power line. He recovered under the state workers’ compensation act, but also sued Petit Jean. Jackson argued that Petit Jean was negligent in breaching a duty of care for the employees of the independent contractor which it affirmatively assumed" }, { "docid": "4424280", "title": "", "text": "theory that the general or prime contractor invites the subcontractor onto a job site and therefore assumes a degree of responsibility for the subcontractor’s employees’ welfare. Gordon v. Matson, 439 S.W.2d at 629. The business invitee rule does not apply directly to the instant case, where the government has hired an independent contractor to perform work on the contractor’s own premises. Nevertheless, the underlying basis for liability to a business invitee, control over the job site, is also at work in a related principle set forth in section 414 of the Second Restatement of Torts: § 414. Negligence in Exercising Control Retained by Employer. One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. Comment c to section 414 states: In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. Restatement (Second) of Torts § 414, comment c (1965). The Arkansas courts follow this rule, finding liability where the employer of an independent contractor retains control of the work. See Aluminum Ore Co. v. George, 186 S.W.2d at 658. In one Arkansas case, Erhart v. Hummonds, 232 Ark. 133, 334 S.W.2d 869 (Ark.1960), several architects were held" }, { "docid": "3240696", "title": "", "text": "general supervision and control of the work. Section 414 of the Restatement (Second) of Contracts (1965) provides: One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. Under this provision, an employer who retains control has a duty to prevent subcontractors from carrying out their work in a dangerous manner or from performing their work in a way that creates a dangerous condition to others. Crescent is not liable under this section, however, because it did not retain the degree of control necessary to trigger application of section 414. Comment C to section 414 states: In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to the employer, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. It is evident from the trial court’s findings that Crescent did not retain control over the work. The court referred to Crescent’s possession through its contractors, and specifically noted that no Crescent employee even inspected the module or was in physical contact with the module during or after the loading onto Barge MM240. The court also found that Crescent had no knowledge of the dangerous condition on the walkway. These findings are fully supported by the evidence, which shows that Crescent" }, { "docid": "3557233", "title": "", "text": "and 2322 nor under the aforementioned sections of Title 30 of the Code of Federal Regulations. These claims will be addressed in seriatim. Because the platform was located on the Outer Continental Shelf in federal waters, Louisiana law applies. Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969); 43 U.S.C. § 1333(a)(2)(A). Under Louisiana law, a principal who employs an independent contractor is not liable for injuries sustained in the course of the contracted-for work by employees of that independent contractor unless (1) the principal has exercised operational control or (2) the work of the independent contractor involves ultrahazardous activity. Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 549 (5th Cir.1987); cert. denied, 485 U.S. 1034, 108 S.Ct. 1593, 99 L.Ed.2d 908 (1988); Hawkins v. Evans Cooperage Co., Inc., 766 F.2d 904, 906 (5th Cir.1985). The most important inquiry is whether the right to control the work is reserved by the principal. Not actual control but the right to exercise it. Smith v. Crown Zellerbach, 486 So.2d 798, 801 (La.App. 1st Cir.), writ denied, 489 So.2d 246 (La.1986) (citing Hickman v. Southern Pacific Transport Co., 262 So.2d 385 (La.1972)). “Operational control does not arise unless the principal retains control over the methods and manner of performing the work.” Grammer v. Patterson, 860 F.2d 639, 642 (5th Cir.1988). “It is not enough that the [principal] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendation which need not necessarily be followed or to prescribe alterations or deviations.” Id. (quoting Restatement (Second) of Torts § 414 comment (c)). See also Hickman, 262 So.2d at 390. Moreover, a principal demanding compliance with all applicable safety codes is likewise insufficient evidence of operational control. Smith, 486 So.2d at 802. Here, the facts submitted by the parties unquestionably show that Mobil did not retain the right to exercise operational control in the sense required by Louisiana law. Mobil merely retained the right to force Otis to shutdown if Mobil’s supervisor observed unsafe" }, { "docid": "23460512", "title": "", "text": "description. “The second exception imposes liability upon a principal for the negligent acts of an independent contractor when the principal reserves the right to supervise or control the work.” Id. at 1363. In other words, “[a] principal is not liable for the torts of an independent contractor unless the principal exercises operational control over or expressly or impliedly authorizes the independent contractor’s actions.” Duplantis, at 192 (quoting Landry v. Huthnance Drilling Co., 889 F.2d 1469, 1471 (5th Cir.1989)). In Landry, we found that: In order for [a principal] to be liable for the actions of an [independent contractor], the [principal] must have retained at least some degree of control over the manner in which the work was done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations or deviations. Such a general right is usually reserved to employers, but this does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of right of supervision that the contractor is not entirely free to do the work in his own way. Landry, 889 F.2d at 1471 (quoting RESTATEMENT (SECOND) OF TORTS § 414, comment c) (quoted in Duplantis at 193). Shell did not retain operational control in its contract with Cajun. Plaintiffs argue that the Manual implies the contrary. The Triplette court, however, found that even though the contract required that [the contractor] comply with [the principal’s] safety standards, this requirement does not signify the requisite right of operational control sufficient to vitiate the independent contractor relationship. The test for determining owner-independent contractor status is direct supervision over the step-by-step process of accomplishing the work. 554 So.2d at 1363. Shell did not retain this kind of direct operational control over Cajun and, under Louisiana law, “[t]he fact that a principal takes an active interest in the safety of the employees of its independent contractor does" }, { "docid": "3240697", "title": "", "text": "has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to the employer, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. It is evident from the trial court’s findings that Crescent did not retain control over the work. The court referred to Crescent’s possession through its contractors, and specifically noted that no Crescent employee even inspected the module or was in physical contact with the module during or after the loading onto Barge MM240. The court also found that Crescent had no knowledge of the dangerous condition on the walkway. These findings are fully supported by the evidence, which shows that Crescent had no actual control over the details of the work, but merely inspected and received progress reports. Absent control over the manner of performance, Crescent owed no duty to discover and remedy hazards created by its independent contractors, and, “absent a ‘peculiar unreasonable risk of physical harm,’ . owed no duty to take special precautions.” McCormack v. Noble Drilling Corp., 608 F.2d 169, 175 (5th Cir. 1979) . For these reasons, we reverse the trial court’s holding that Crescent, as owner of the module, negligently failed to discover and remedy the hazardous condition. Moser also asserted at trial that Crescent was the actual charterer of the barge, through its agents Shipco and TMT, and as such, was liable as the shipowner for purposes of section 905(b) of the LHWCA. The trial court did not reach this issue, and we therefore remand for a determination of Crescent’s status as owner of the vessel and any attendant duties under 905(b). See note 5 supra. Damages The trial court awarded Moser $884,-786.55 in damages, to be reduced by" }, { "docid": "22298140", "title": "", "text": "not liable for the torts of an independent contractor unless the principal exercises operational control over or expressly or impliedly authorizes the independent contractor's actions.” Landry v. Huthnance Drilling Co., 889 F.2d 1469, 1471 (5th Cir.1989). In Landry, we found that [i]n order for [a principal] to be liable for the actions of an [independent contractor], the [principal] must have retained at least some degree of control over the manner in which the work was done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations or deviations. Such a general right is usually reserved to employers, but this does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of right of supervision that the contractor is not entirely free to do the work in his own way. Landry, 889 F.2d at 1471 (quoting RESTATEMENT (SECOND) OF TORTS § 414, comment c). We have frequently noted that, under Louisiana law, “the relationship between the principal and the independent contractor is in large measure determined by the terms of the contract itself.” Ham v. Pennzoil Co., 869 F.2d 840, 842 (5th Cir.1989). Article XVI of the Master Drilling Agreement under review provides that [Grace/Booker] is an independent contractor with respect to the performance of all work hereunder and neither Contractor nor anyone employed by Contractor shall be deemed for any purpose to be the employee, agent, servant or representative of Shell in performance of any work or service hereunder. Shell shall have no direction or control of Contractor or its employees and agents except in the results to be obtained. The work performed hereunder shall meet the approval of Shell and be subject to the general right of inspection provided herein for Shell to secure the satisfactory completion thereof. In Ainsworth, 829 F.2d at 550, we concluded that an identical provision in a Shell contract" }, { "docid": "15376059", "title": "", "text": "(Ct.App.1979). An exception to this general rule is the doctrine of “retained control.” “Retained control over the work entrusted to an independent contractor may expose the owner to liability for injuries to an employee of the independent contractor.” Citizen’s Utility, 21 Ariz.App. at 53, 515 P.2d at 350. Arizona follows section 414 of the Restatement regarding retained control: Negligence in Exercising Control Retained by Employer One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. Restatement, § 414, quoted in Pruett, 27 Ariz.App. at 291, 554 P.2d at 658. This rule of derivative liability is further delineated by the Restatement: In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations.... There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. Restatement, § 414 comment c; accord Sullins, 124 Ariz. at 118, 602 P.2d at 499 (quoting comment c). The parties dispute the district court’s conclusion that Asarco did not retain control over the manner in which J & L was to perform its work. The Martinezes argue that Asarco controlled the commencement of work on the settling chamber, scheduled the work, determined when the furnace would be shut off, and had supervisory personnel on the job site. The record reveals support for each of these assertions. We nonetheless agree with Asarco that even if they are all true, the Martinezes have failed to raise a genuine dispute" }, { "docid": "15130992", "title": "", "text": "equal force to the situation presented in this case. In this case, there was no evidence that the crane which dropped the dunnage that killed Clark Hines was not in good working order. In fact, the deposition testimony of the stevedore captain is to the contrary. Furthermore, the act of the crane operator in swinging a load of dunnage over hold number three while men were working below was unforeseeable. Finally, BSC’s cargo representative was not on the boat at the time of the accident. Under these circumstances, Scindia forecloses liability on BSC absent a contract provision, positive law, or custom to the contrary. Cameron v. Consolidated Grain and Barge Co., 654 F.2d 468, 471-72 (7th Cir.1981). Indeed, appellant argues that BSC, by its contractual arrangements with both the owner of the Ravenna and with Ceres, undertook operative control of stevedoring operations aboard the Ravenna and thereby assumed a duty to supervise and ensure the safety of the longshoremen who were engaged in cargo operations aboard the Ravenna at the time of the accident. Appellant makes her argument on the authority of Restatement of Torts, Second, § 414, and its accompanying comments. Section 414 of the Restatement provides: One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise his control with reasonable care. The comments to Section 414 suggest, however, the parameters of the “retention of control” concept: It is not enough that [the employer] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do" }, { "docid": "15130993", "title": "", "text": "makes her argument on the authority of Restatement of Torts, Second, § 414, and its accompanying comments. Section 414 of the Restatement provides: One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise his control with reasonable care. The comments to Section 414 suggest, however, the parameters of the “retention of control” concept: It is not enough that [the employer] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. Restatement (Second) of Torts, § 414 comment (c). Few courts have applied Section 414 in the context of a lawsuit under Section 905(b) of the LHWCA. In fact, in Scindia, the Supreme Court rejected the application of Restatement Sections 343 and 343A to actions under Section 905(b). The Fourth Circuit has interpreted Scindia as having rejected all land-based negligence standards in maritime cases, which would presumably include Restatement Section 414. See Hodges v. Evisea Maritime Co., S.A., 801 F.2d 678, 683 (4th Cir.1986), cert. denied, 480 U.S. 933, 107 S.Ct. 1572, 94 L.Ed.2d 764 (1987). Actually, however, although the Supreme Court indicated that the standards under Section 905(b) “are not necessarily to be governed by principles applicable in non-maritime contexts,” the Court did not reject the Restatement as a useful analytical tool outright. Rather, the Scindia Court found Restatement sections 343 and 343A were not helpful in that particular case. Scindia, 451 U.S. at 168 n. 14, 101 S.Ct. at 1622 n. 14. See Hurst v. Triad Shipping Co.," }, { "docid": "9534664", "title": "", "text": "its maximum and to remove the plugs’ weepholes to accomplish maximum torque rose to the level of operational control over the testing procedure. The term “operational control” as employed by this Circuit and Louisiana courts can be traced to the Restatement which provides in part that “[i]f the employer of an independent contractor retains control over the operative detail of doing any part of the work,” he may be subject to liability for the offenses of his independent contractor. Restatement (Second) of Torts § 414 comment a (1965) (emphasis added). Section 414 further provides that [i]n order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. Id., comment c (emphasis added). Following § 414 we have consistently held that operational control does not arise unless the principal retains control over the methods and manner of performing the work. Wallace, 727 F.2d at 437 (indicating that the central issue germane to operational control is control over the manner of performance); see Hawkins, 766 F.2d at 908 (finding no operational control where principal failed to instruct the method of transport). A recent Louisiana case intimated that operational control only arises if the principal “exercise[s] direct supervision over the step-by-step process of accomplishing the work.” Guillory v. Conoco, Inc., 521 So.2d 1220, 1223 (La.Ct.App.1988). After reviewing all the evidence, we conclude that Patterson’s instructions to maximize torque and remove weepholes did not constitute operational" }, { "docid": "638492", "title": "", "text": "triggered when the employer — usually a general contractor — has retained supervisory control over the independent contractor without retaining control over all operative details of a project. As comment b explains, the rule stated in section 414 “is usually, though not exclusively, applicable when a principal contractor entrusts a part of the work to subcontractors, but himself or through a foreman superintends the entire job.” Comment b elaborates that negligence liability arises in this situation if the general contractor “knows or by the exercise of reasonable care should know that the subcontractors’ work is being [done dangerously], and has the opportunity to prevent it by exercising the power of control which he has retained in himself.” Liability also arises if the general contractor “knows or should know that the subcontractors have carelessly done their work in such a way as to create a dangerous condition, and fails to exercise reasonable care either to remedy it himself or by the exercise of his control to cause the subcontractor to do so.” Proceeding on the understanding that section 414 states a theory of direct liability based on a general contractor’s failure to exercise reasonable care, whether TBMK retained a level of control sufficient to give rise to a duty to exercise reasonable care is a question of law. See Rangel v. Brookhaven Constructors, Inc., 307 Ill.App.3d 835, 241 Ill.Dec. 313, 719 N.E.2d 174, 176 (1999). As comment c to section 414 explains: In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a" }, { "docid": "8600400", "title": "", "text": "particular, as both sides emphasize in their briefs, the case turns on the meaning of Corsetti v. Stone Co., 396 Mass. 1, 483 N.E.2d 793 (1985). In Corsetti, the Supreme Judicial Court of Massachusetts held a general contractor liable for the injuries of the employee of a subcontractor because the general contractor was contractually obligated to “initiate, maintain and supervise all safety precautions and programs in connection with the work,” and it had retained the authority and control necessary to carry out that responsibility. Corsetti, 483 N.E.2d at 796 n. 4. In addition, there was testimony that the general contractor’s supervisor had (and exercised) authority to examine safety devices at the site and to direct the subcontractors to remedy safety violations. Id. at 799. In its opinion, the Court adopted the rule of § 414 of the Restatement (Second) of Torts (Restatement): one who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused bv his failure to exercise his control with reasonable care. Corsetti, 483 N.E.2d at 798. The specific question for decision is whether Rust retained sufficient control over the work within the meaning of Cor-setti and the Restatement to be liable for Foley’s injuries. We begin with the language of Comment C to § 414 of the Restatement: It is not enough that [the general contractor] has merely a general right to order the work stopped or resumed, to inspect its progress or receive reports, to make suggestions or recommendations which need not necessarily be followed, to prescribe alterations or deviations, such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to his operative detail. There must be such retention of a right of supervision that the contractor is not entirely free to do the work his own way. The key issue, according to the Comment, is whether the" }, { "docid": "23460511", "title": "", "text": "employee. According to Gaubert’s affidavit: Cajun Painting paid John LeJeune’s weekly salary, provided him with the necessary tools, assigned and supervised his daily work; ... I, as Cajun Painting foreman, was responsible for the supervision of John LeJeune’s work, activities and safety at the Norco Manufacturing Complex. Therefore, if there was negligence regarding safety, it was Cajun’s negligence. Plaintiffs place great reliance on the expert testimony of Michael Frenzel who testified that there were safer methods available for painting the pipe rack. It was Cajun’s responsibility, however, to devise the method of performing the work. Therefore, plaintiffs can only succeed under their art. 2315 theory if Shell is responsible for Cajun’s hypothetical negligence. We note that “[ujnder Louisiana law, a principal generally is not liable for the offenses an independent contractor commits in the course of performing contractual duties.” Triplette v. Exxon Corp., 554 So.2d 1361, 1362 (La.App., 1st Cir.1989). Two exceptions exist. One is if the work the contractor is to perform is “ultrahazardous.” Id. Plaintiffs do not claim that LeJeune’s job fit this description. “The second exception imposes liability upon a principal for the negligent acts of an independent contractor when the principal reserves the right to supervise or control the work.” Id. at 1363. In other words, “[a] principal is not liable for the torts of an independent contractor unless the principal exercises operational control over or expressly or impliedly authorizes the independent contractor’s actions.” Duplantis, at 192 (quoting Landry v. Huthnance Drilling Co., 889 F.2d 1469, 1471 (5th Cir.1989)). In Landry, we found that: In order for [a principal] to be liable for the actions of an [independent contractor], the [principal] must have retained at least some degree of control over the manner in which the work was done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations or deviations. Such a general right is usually reserved to employers, but this does not mean" }, { "docid": "638493", "title": "", "text": "that section 414 states a theory of direct liability based on a general contractor’s failure to exercise reasonable care, whether TBMK retained a level of control sufficient to give rise to a duty to exercise reasonable care is a question of law. See Rangel v. Brookhaven Constructors, Inc., 307 Ill.App.3d 835, 241 Ill.Dec. 313, 719 N.E.2d 174, 176 (1999). As comment c to section 414 explains: In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. Illinois courts have held that “an employer need only retain the control of any part of the work in order to be subject to liability for a failure to exercise his control with reasonable care.” Brooks v. Midwest Grain Prods. of Ill., Inc., 311 Ill.App.3d 871, 244 Ill.Dec. 557, 726 N.E.2d 153, 155 (2000) (emphasis added). In determining whether that level of control has been retained, Illinois courts ask whether the principal merely retained general oversight of work progress and safety or actually engaged in detailed supervision and/or control of subcontractors’ methods and means of performing work. See, e.g., Ross v. Dae Julie, Inc., 341 Ill.App.3d 1065, 275 Ill.Dec. 588, 793 N.E.2d 68, 72 (2003) (“[A] general right to ensure that safety precautions are observed and that work is done in a safe manner will not impose liability on the general contractor unless the evidence shows that the general contractor retained control over the" }, { "docid": "5356880", "title": "", "text": "(D.Md.1975). . Another court has questioned whether §§ 343-43A should apply at all in the LHWCA context because of their incorporation of the doctrine of assumption of risk. Brown v. Ivarans Rederi A/S, 545 F.2d 854, 863-64 n. 10 (3d Cir. 1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977). . “One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” Restatement (Second) of Torts, § 414. In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” Restatement (Second) of Torts § 414, Comment c (1965). In Hurst v. Triad Shipping Co., supra, the court rejected a § 414 argument for similar reasons. The court noted that in the few opinions holding the shipowner liable for injuries suffered because of improper stevedoring operations, the “shipowners’ participation in the operations is clear, direct, and of significant proportions.” Id. at 1252 n. 38. . Of course, the duty to exercise reasonable care may not be delegated if the work to be done is “inherently dangerous”. Orr v. United States, 486 F.2d 270 (5th Cir. 1973); Restatement (Second) of Torts § 413; W. Prosser, Law of" }, { "docid": "5222393", "title": "", "text": "usually is complied with or not.” Texas & Pac. Ry. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 623, 47 L.Ed. 905 (1903); see B & B Insulation, Inc. v. Occupational Safety & Health Review Comna’n, 583 F.2d 1364, 1370 (5th Cir. 1978); W. Prosser, Law of Torts § 33 at 168-69 (3rd ed. 1964); Restatement (Second) of Torts § 295A, comment c (1965). No group of individuals and no industry or trade can be permitted, by adopting careless and slipshod methods to save time, effort, or money, to set its own uncontrolled standard at the expense of the rest of the community. If the only test is to be what has always been done, no one will ever have any great incentive to make any progress in the direction of safety. It follows, therefore, that whenever the particular circumstances, the risk, or other elements in the case are such that a reasonable man would not conform to the custom, the actor may be found negligent in conforming to it; and whenever a reasonable man would depart from the custom, the actor may be found not to be negligent in so departing. Id. . c. In order for the [employer to be subject to liability for negligent exercise of control over the independent contractor], the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. Id. § 414, comment c at 388." }, { "docid": "22298139", "title": "", "text": "have little impact if the proceedings get bogged down in a needless examination of the hypothetical ways the nonmoving party’s evidence might be reduced to admissible form by the time of trial.” Melissa L. Nelken, One Step Forward, Two Steps Back: Summary Judgment After Celotex, 40 Hastings L.J. 53, 85 (1988). Robert’s unauthenticated letter is not the kind of evidence described in Rules 56(c) and 56(e), and it was therefore not the district court’s duty to examine whether and how it might be reduced to acceptable form by the time of trial. II. Shell did not Maintain Operational Control over Grace/Booker’s Operation. Plaintiffs contend that, even if Stanley Duplantis was injured as the result of the sole negligence of Grace/Booker, Shell is nevertheless liable. We have frequently noted that, under Louisiana law, unless the activity in which the injury occurred was ultra-hazardous, Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 549-50 (5th Cir.1987), cert. denied, 485 U.S. 1034, 108 S.Ct. 1593, 99 L.Ed.2d 908 (1988), a contention which plaintiffs do not make, “[a] principal is not liable for the torts of an independent contractor unless the principal exercises operational control over or expressly or impliedly authorizes the independent contractor's actions.” Landry v. Huthnance Drilling Co., 889 F.2d 1469, 1471 (5th Cir.1989). In Landry, we found that [i]n order for [a principal] to be liable for the actions of an [independent contractor], the [principal] must have retained at least some degree of control over the manner in which the work was done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations or deviations. Such a general right is usually reserved to employers, but this does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of right of supervision that the contractor is not entirely free to do the work in his own way. Landry," }, { "docid": "23199087", "title": "", "text": "vessels, and affirmed the district court’s holding that the LHWCA applied. Again, because the worker was totally land-based, performed welding repairs while the ship was out of operation and was not exposed to any peculiarly maritime risks, the permanency requirement was used to deny seaman status. . Bertrand specifically pointed out that a marine worker’s task need not be coextensive with the vessel’s larger mission in order for him to be seaman. 700 F.2d at 248, n. 16. . Although the evidence in the Jones Act claim is evaluated by a lower standard (“complete absence of probative facts”), Id., the claim against Cities Service, a third-person, is one for maritime tort under the general maritime law, and not under the Jones Act. Hence, the Boeing standard is applicable. . The Restatement provides that an employer who retains control of the work has a duty to prevent independent contractors from working in a dangerous manner. Comment C provides: In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to the employer, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. . The master service contract provides: Zapata [is not obligated] to order work and/or equipment or materials from contractor, nor does it obligate contractor to accept such order, but it, together with any applicable work order shall control and govern all work accepted by contractor and shall define the rights and obligations of Zapata and contractor during the term hereof. . The" } ]

[ { "docid": "8999015", "title": "", "text": "law claims, defendant Bean argues that the claims substantially predominate over Jaffrey’s federal CERCLA claims; the claims raise novel or complex issues of state law; and other compelling reasons exist to justify dismissal of the state claims. A. Predomination of State Claims Jaffrey’s state law claims are sufficiently “related” to its federal claims for jurisdictional purposes. See 28 U.S.C. § 1367(a), supra; Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138 (“The state and federal claims must derive from a common nucleus of operative fact.”). However, of the nine state claims, only one — the third claim for relief grounded on a violation of N.H. RSA 147-B — resembles CERCLA as to theory of liability and scope of available remedies. Jaffrey’s CERCLA claims are premised on strict liability. See Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150, 1158 (1st Cir.1989). The state law claims substantially broaden the scope of possible liability to include theories of negligence, nuisance, trespass, and breach of contract. Similarly, plaintiffs state claims are subject to a broad range of defenses including comparative negligence, statute of limitations, and complex statutory provisions for apportionment and contribution, see N.H. RSA 507:7-d, 7-e, 7-f, 7-g, that do not apply to the federal CERCLA claims. Under CERCLA, plaintiffs damages are limited to recovery of response costs, see, e.g., Mesiti v. Microdot, Inc., 739 F.Supp. 57, 62 (D.N.H. 1990) (citing cases), while under state law theories plaintiff may be entitled to full compensatory damages and enhanced damages. Under these circumstances, Jaffrey’s state law claims do substantially predominate over its federal claims. Compare Commerce Holding Co. v. Buckstone, 749 F.Supp. 441 (E.D.N.Y.1990) (state claims predominate) and Dublin Scarboro Improvement Ass’n v. Harford County, 678 F.Supp. 129 (D.Md.1988) (same) with Arawana Mills Co. v. United Technologies Corp., 795 F.Supp. 1238 (D.Conn.1992) (state claims do not predominate) and Sheaffer Eaton, Inc. v. Textron, Inc., No. 4:91-CV-73, 1992 U.S.Dist. LEXIS 8687 (W.D.Mich. Feb. 18, 1992) (same). B. Novel or Complex Issues of State Law Bean also points to several questions of state law which it says are novel or complex and which" } ]

[ { "docid": "14282753", "title": "", "text": "be “burdened” by judicial intervention. Moreover, this is not a case in which the dispute is “otherwise destined to disappear by [itself],” because plaintiff has alleged that defendant is responsible for hazardous substances that have already been released on the Property. “A case is ripe where the essential facts establishing the right to declaratory relief have already occurred.” Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 893 (9th Cir.1986), citing Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 242 (1937); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2757, at 585 (1983). Inasmuch as plaintiff has alleged that there was a release of hazardous substances on the Property during the time defendants operated the overhauling and servicing facility, plaintiff has alleged “the occurrence of the essential facts establishing its right to a declaratory judgment.” Cadillac Fairview, 840 F.2d at 696, citing Wickland Oil Terminals v. Asarco, Inc., 792 F.2d at 893. C. Defendant argues, in addition, that plaintiff may not obtain declaratory relief under section 9607 because “the only ‘CERCLA claim’ Arawana Mills could ever bring would be a claim for recovery of CERCLA ‘response costs.’ ” Defendant’s Memorandum at 20. This argument is not persuasive. Numerous courts have entertained claims for declaratory judgment as to liability for future response costs under section 9607 of CERCLA. See, e.g., Cadillac Fairview, 840 F.2d at 696; Wickland Oil Terminals v. Asarco, Inc., 792 F.2d at 893; Alloy Briquetting Corp. v. Niagara Vest, Inc., 756 F.Supp. at 719; New York v. Exxon Corp., 633 F.Supp. at 617; International Clinical Laboratories, Inc. v. Stevens, 710 F.Supp. at 472. For the reasons stated above, defendant’s motion to dismiss the claim for a declaratory judgment is denied. III. State Law Claims A. In addition to the CERCLA claim, plaintiff asserts various state law claims. The court’s exercise of jurisdiction over the state law claims is governed by the Judicial Improvements Act of 1990, 28 U.S.C. § 1367(a) (“section 1367(a)”), which provides in relevant part that the district courts shall have supplemental jurisdiction over all other claims that are so" }, { "docid": "939657", "title": "", "text": "bench and jury trial. Kleen Laundry, 1994 W.L. 287747 at *5; see also Mill Invs. v. Brooks Woolen Co., 797 F.Supp. 49, 52 (D.Me.1992). F.Count Y (Trespass) In Count V, the first of the five state law claims, the plaintiffs allege that wastes from the Dauphin site have trespassed onto their property and continue to be present. BIW has moved for summary judgment on the ground that the applicable six-year statute of limitations has run on this claim. The plaintiffs allege that waste from the Dauphin site has migrated onto their lands on at least three separate occasions: 1978, 1986 and 1992. See Plaintiffs’ Objection to Defendant’s Motion for Summary Judgment (Docket No. 42) at 15-16. In 1978 sludge allegedly flowed onto the property of Kenneth Murray; in 1986 sampling of the residential wells in the Tarbox Hill area indicated the presence of chemicals linked to the site; and in 1992 surface seeps allegedly showed the presence of contaminants from the site. See Facts, infra, pp. 3-4, 5, 6-7. The plaintiffs’ complaint in this action was filed on July 14, 1993. The plaintiffs’ complaint asserts that the presence of BIW’s waste on their property constitutes a continuing trespass. Complaint ¶ 129. Maine’s six-year statute of limitations, see 14 M.R.S.A. § 752, does not bar this claim. To the extent that the plaintiffs can show that wastes from the site continue to be present on their land, regardless of when they entered, they can maintain an action for a continuing trespass under Maine law, since that tort would be continually occurring for statute of limitations purposes. Russell v. Brown, 63 Me. 203, 204-05 (1874); Esty v. Baker, 48 Me. 495, 499 (1860); Restatement (Second) of Torts § 161, cmt. b (1965); D. Zillman et al., Maine Tort Law, § 5.09 at 5-17 to 5-18 (1994). Of course, to prevail on any trespass claim, the plaintiffs will need to show that BIW was at least negligent in causing its waste to enter their land. Hayes v. Bushey, 160 Me. 14, 17, 196 A.2d 823 (1964). At this stage, however, they have alleged" }, { "docid": "939653", "title": "", "text": "v. United States, 746 F.Supp. 887, 901-04 (D.Minn.1990); Lutz v. Chroma- tex, Inc., 718 F.Supp. 413, 417-18 (M.D.Pa.1989). But see Williams v. Allied Automotive, Autolite Div., 704 F.Supp. 782, 784 (N.D.Ohio 1988); Brewer v. Ravan, 680 F.Supp. 1176, 1179-80 (M.D.Tenn.1988). I agree. Only governmental entities may recover the cost of medical monitoring, as performed by the Agency for Toxic Substances and Disease Registry pursuant to the dictates of CERCLA. 42 U.S.C. §§ 9604®, 9607(a)(4)(D); Daigle, 972 F.2d at 1537. Costs associated with the sampling and testing of the alleged contamination from the Dauphin site, however, would be recoverable, Arawana, 795 F.Supp. at 1243, provided they are in fact response costs and not litigation-related expenses, Dedham Water Co. v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 461 (1st Cir.1992). Whether the response costs allegedly incurred by the plaintiffs, see Murray Affidavit ¶ 8, were in fact necessary and consistent with the national contingency plan, as required for CERCLA recovery under section 9607(a)(4)(B), presents factual issues to be resolved at trial. See Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 695 (9th Cir.1988). Accordingly, I grant summary judgment for BIW on the plaintiffs’ claims for medical monitoring expenses under CERCLA, but deny it as to the remaining response costs claims. E. Pendent Jurisdiction BIW has requested that the court refuse to exercise pendent or supplemental jurisdiction over the plaintiffs’ state law claims. At this juncture of the proceedings, with a trial date firmly set for four months hence, I decline to do so. Given that the bulk of the plaintiffs’ four federal claims have survived summary judgment, and that the state law claims derive from a common nucleus of operative facts, the exercise of supplemental jurisdiction over the state law claims at this point is wholly appropriate. 28 U.S.C. § 1367(a); White v. County of Newberry, 985 F.2d 168, 172 (4th Cir.1993); Arawana Mills, 795 F.Supp. at 1248-49. In addition, nothing about this case counsels particularly strongly against the application of supplemental jurisdiction. 28 U.S.C. § 1367(e). The five state law claims, sounding in strict liability and negligence, do not" }, { "docid": "19890981", "title": "", "text": "Act of 1990 (JIA). This state law claim tends to predominate over plaintiffs’ federal securities claims. Consequently, under 28 U.S.C. § 1367(c)(2) and (c)(4), I decline to exercise supplemental jurisdiction over plaintiffs’ state law claim. I will grant Synergen’s motion and dismiss plaintiffs’ negligent misrepresentation claim without prejudice. The decision whether to exercise pendent jurisdiction has traditionally been a matter within the court’s discretion. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Because § 1367 codifies pendent jurisdiction, the discretionary element is necessarily retained. James v. Sun Glass Hut of California, Inc., 799 F.Supp. 1083, 1084 (D.Colo.1992). However, that discretion is limited by the requirement that supplemental jurisdiction be exercised unless one of the categories in § 1367(e) is met. Id. Specifically, § 1367(c) provides: (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— 1) the claim raises a novel or complex issue of State law, 2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, 3) the district court has dismissed all claims over which it has original jurisdiction, or 4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. The JIA expressly preserves only two of the four Gibbs discretionary factors. LaSorella v. Penrose St. Francis Healthcare System, 818 F.Supp. 1413, 1415 (D.Colo.1993). The first Gibbs factor, the absence of judicial economy, convenience and fairness to litigants, and the fourth, jury confusion caused by divergent state and federal claims and theories are absent from § 1367(c). It is unclear whether these factors are retained under the § 1367(c)(4) “exceptional circumstances” category. See Executive Software North America, Inc. v. U.S. District Court for Central District of California, 15 F.3d 1484, 1493 n. 6 (9th Cir.1994) (stating courts still take into account the values of judicial economy, fairness, convenience and comity in interpreting § 1367(c)(4)); see also Growth Horizons, Inc. v. Delaware County, Pa., 983 F.2d 1277, 1284 (3rd Cir.1993); But Cf. LaSorella, 818 F.Supp. at 1415 (stating that § 1367(c)" }, { "docid": "5779315", "title": "", "text": "as the Arawana Mills court did — would be contrary to the intent of the legislature. The Connecticut Supreme Court has not addressed whether a CUTPA violation may arise out of conduct that is merely incidental to the conduct of one’s primary or true trade or commerce. This court must therefore predict how Connecticut’s highest court would rule in the circumstances of this case. See Doyle v. St. Paul Fire & Marine Ins. Co., Inc., 583 F.Supp. 554, 555 (D.Conn.1984) (when deeiding issue not yet decided by the highest court of the state, federal court sitting in diversity may consider all data the highest court would use to- determine how that court would decide). Since Arawana Mills, the district court in Connecticut has decided the issue presented, here in a case similar to this one. In Sealy Connecticut, Inc. v. Litton Industries, Inc., 989 F.Supp. 120 (D.Conn.1997), the plaintiff claimed that the defendant violated' CUTPA by allegedly contaminating certain property it had leased from the plaintiff and then concealing from the plaintiff the extent of the environmental contamination. The court noted that the claim encompassed the allegations of concealment, but reasoned that “the key question is whether leasing property is defendant’s trade or commerce.” Id. (quoting Arawana Mills, 795 F.Supp. at 1252-53). Following the holding of Arawana Mills, the court dismissed the CUTPA claim. Id. See also Brandewiede v. Emery Worldwide, 890 F.Supp. 79, 81 (D.Conn.1994) (no viable claim under CUTPA for conduct in leasing aircraft where leasing aircraft was incidental to defendant’s primary business of providing overnight freight service) (Eginton, J.). A number of state trial courts have also followed Arawana Mills in deciding whether conduct that was incidental to a defendant’s business could form the basis of a CUTPA violation. E.g., Abely Waste Oil Servs., Inc. v. Ravenswood Dev. Corp., No. CV950369487S, 1 Conn.Ops. 1105,1995 WL 562203 (J.D. New Haven, September 15, 1995) (disposal of waste oil by development company was merely incidental to primary trade of developing real estate and therefore could not form basis for CUTPA claim) (Hartmere, J.); Barnes v. General Electric Co., No. CV930529354," }, { "docid": "939656", "title": "", "text": "for the scope of relief available under Maine law, the fact that the remedies available on the state claims differ from those available on the federal claims does not mean that the state claims substantially predominate over the federal claims. White, 985 F.2d at 172; New York v. Shore Realty Corp., 759 F.2d 1032, 1050 (2d Cir.1985); Arawana Mills, 795 F.Supp. at 1248-49. Each one of the plaintiffs’ nine claims, federal and state, seeks a specific remedy for a specific harm or injury. Finally, to the extent that the state claims involve issues triable to a jury, whereas the majority of the federal claims do not, I believe that the resolution of the nonjury federal issues may be easily directed to the court after the presentation of the entire case without likely causing juror confusion. But see Town of Jaffrey, 846 F.Supp. at 6. In the absence of juror confusion, interests of judicial economy, convenience and fairness dictate, especially at this late date, that the state and federal claims be tried together in a combined bench and jury trial. Kleen Laundry, 1994 W.L. 287747 at *5; see also Mill Invs. v. Brooks Woolen Co., 797 F.Supp. 49, 52 (D.Me.1992). F.Count Y (Trespass) In Count V, the first of the five state law claims, the plaintiffs allege that wastes from the Dauphin site have trespassed onto their property and continue to be present. BIW has moved for summary judgment on the ground that the applicable six-year statute of limitations has run on this claim. The plaintiffs allege that waste from the Dauphin site has migrated onto their lands on at least three separate occasions: 1978, 1986 and 1992. See Plaintiffs’ Objection to Defendant’s Motion for Summary Judgment (Docket No. 42) at 15-16. In 1978 sludge allegedly flowed onto the property of Kenneth Murray; in 1986 sampling of the residential wells in the Tarbox Hill area indicated the presence of chemicals linked to the site; and in 1992 surface seeps allegedly showed the presence of contaminants from the site. See Facts, infra, pp. 3-4, 5, 6-7. The plaintiffs’ complaint in this action" }, { "docid": "12380220", "title": "", "text": "DEP, and until all soil, surface water and ground water contamination on or emanating from the site have been abated to DEP’s satisfaction. . Defendants also assert that Count IX fails to state a claim upon which relief may be granted because the activities alleged by plaintiff do not constitute ultrahazardous activities. The question of whether an activity is abnormally dangerous is generally a question of law for the court to decide. Bernbach v. Timex Corp., 989 F.Supp. 403, 407 (D.Conn.1996) (Arterton, J.). As this Court noted in the Bernbach, the Connecticut Supreme Court has never ruled on whether the storage, disposal and failure to clean up hazardous wastes may constitute an ultrahazardous activity subject to strict liability. Although the Bernbach Court was unwilling to rule categorically that the handling of hazardous wastes could never give rise to strict liability, the Court found that the plaintiffs had failed to allege \"circumstances and conditions” in the defendant's activities such that \"irrespective of due care” the activities \"involve a risk of probable injury to such a degree that [they] fairly can be said to be intrinsically dangerous.” Id. (quoting Arawana Mills Co. v. United Technologies Corp., 795 F.Supp. 1238, 1252 (D.Conn.1992)); see also Nielsen v. Sioux Tools, Inc., 870 F.Supp. 435, 442 (D.Conn.1994) (declining to extend strict liability for the ultrahazardous activities to alleged conduct of a defendant involving the storage and use of hazardous materials). As in the Bernbach case, plaintiff in this case has not alleged activities on the part of defendants — particularly on the part of McHugh, Sr. — that would subject them to strict liability on the ground that they were engaged in an ultrahazardous activity. . Although there was only one named respondent, the Consent Order defines \"respondents” as Calabrese Construction Co., Inc., and Joseph Calabrese. . Conn. Gen.Stat. § 22a-452 provides: Any person, firm, corporation or municipality, which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous waste resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance" }, { "docid": "939654", "title": "", "text": "Chemical Co., 840 F.2d 691, 695 (9th Cir.1988). Accordingly, I grant summary judgment for BIW on the plaintiffs’ claims for medical monitoring expenses under CERCLA, but deny it as to the remaining response costs claims. E. Pendent Jurisdiction BIW has requested that the court refuse to exercise pendent or supplemental jurisdiction over the plaintiffs’ state law claims. At this juncture of the proceedings, with a trial date firmly set for four months hence, I decline to do so. Given that the bulk of the plaintiffs’ four federal claims have survived summary judgment, and that the state law claims derive from a common nucleus of operative facts, the exercise of supplemental jurisdiction over the state law claims at this point is wholly appropriate. 28 U.S.C. § 1367(a); White v. County of Newberry, 985 F.2d 168, 172 (4th Cir.1993); Arawana Mills, 795 F.Supp. at 1248-49. In addition, nothing about this case counsels particularly strongly against the application of supplemental jurisdiction. 28 U.S.C. § 1367(e). The five state law claims, sounding in strict liability and negligence, do not substantially predominate over the four distinct federal strict liability claims, nor do they present strikingly novel or complex issues of law. See Arawana Mills, 795 F.Supp. at 1248-49. Cf. Town of Jaffrey v. Town of Fitzwilliam, 846 F.Supp. 3, 6 (D.N.H.1994) (nine state law claims substantially predominated over two CERCLA claims; state law claims presented several unsettled questions of state law). Indeed, except for perhaps Count VII (ultrahazar-dous activity), the plaintiffs’ state law claims are fairly common and straightforward. Kleen Laundry & Dry Cleaning Services, Inc. v. Total Waste Management, Inc., 1994 W.L. 287747, *5 (D.N.H. June 28, 1994); Arawana Mills, 795 F.Supp. at 1248. Moreover, this court, sitting in Maine and being familiar with Maine law, is competent to make a determination based on Maine law whether the plaintiffs may assert specific claims under state law. See Kleen Laundry, 1994 W.L. 287747 at *4 (distinguishing Town of Jaffrey); see also Hanlin Group, Inc. v. International Minerals & Chem. Corp., 759 F.Supp. 925, 933 (D.Me.1990) (determination on claim for ultrahazardous activity under Maine law). As" }, { "docid": "14282756", "title": "", "text": "highly skeptical attitude toward attempts to append state claims to CERCLA actions,” id.; see also id. at 30-35. I disagree. Contrary to defendant’s position, our Court of Appeals favors the exercise of pendent jurisdiction. See Promisel v. First American Artificial Flowers, Inc., 943 F.2d 251, 254 (2d Cir.1991) (“A federal court’s exercise of pendent jurisdiction over plaintiff’s state law claims, while not automatic, is a favored and normal course of action.”), cert. denied, — U.S. -, 112 S.Ct. 939, 117 L.Ed.2d 110 (1992). Moreover, our Court of Appeals has specifically authorized the exercise of pendent jurisdiction over state law claims, including claims for common law and statutory nuisance, which were pendent to a CERCLA claim. Shore Realty, 759 F.2d at 1050 (“The public nuisance claim for abatement and the CERCLA claims clearly ‘derive from a common nucleus of operative fact’ and the State ‘would ordinarily be expected to try them all ■ in one judicial proceeding.’ ”). In addition, the state law claims in this case do not raise novel or complex issues of state law that would suggest, much less require, declining the exercise of supplemental jurisdiction pursuant to section 1367(c)(1). They include claims for such things as breach of contract, specific performance, strict liability and violations of CUTPA. It is enough to say that federal courts frequently exercise pendent jurisdiction over such common state law claims in cases grounded on serious federal claims. Although the hazardous waste claim under Conn.Gen.Stat. § 22a-452 arises under relatively new legislation, it does not appear to raise any novel or complex issues. Finally, the state law claims in this case, which are meant to “supplement the CERC-LA relief”, see Plaintiff’s Memorandum at 25, do not “substantially predominate” over the CERCLA claim so that I should decline to exercise pendent jurisdiction pursuant to section 1367(c)(2). Defendant’s main concern seems to be that “the remedies sought under the state law theories vastly exceed those available under CERCLA.” Defendant’s Memorandum at 34; see also id. at 26-27. However, our Court of Appeals, in rejecting an argument that state law issues predominated over a CERCLA claim," }, { "docid": "14282754", "title": "", "text": "only ‘CERCLA claim’ Arawana Mills could ever bring would be a claim for recovery of CERCLA ‘response costs.’ ” Defendant’s Memorandum at 20. This argument is not persuasive. Numerous courts have entertained claims for declaratory judgment as to liability for future response costs under section 9607 of CERCLA. See, e.g., Cadillac Fairview, 840 F.2d at 696; Wickland Oil Terminals v. Asarco, Inc., 792 F.2d at 893; Alloy Briquetting Corp. v. Niagara Vest, Inc., 756 F.Supp. at 719; New York v. Exxon Corp., 633 F.Supp. at 617; International Clinical Laboratories, Inc. v. Stevens, 710 F.Supp. at 472. For the reasons stated above, defendant’s motion to dismiss the claim for a declaratory judgment is denied. III. State Law Claims A. In addition to the CERCLA claim, plaintiff asserts various state law claims. The court’s exercise of jurisdiction over the state law claims is governed by the Judicial Improvements Act of 1990, 28 U.S.C. § 1367(a) (“section 1367(a)”), which provides in relevant part that the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action with such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. The court should exercise supplemental jurisdiction over the state law claims against defendant in this case because the state law claims and CERCLA claims clearly derive from a common nucleus of operative fact. See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). However, defendant contends that the court should decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) (“section 1367(c)”). Defendant relies upon section 1367(c)(1) and (2), arguing that the court should decline to exercise supplemental jurisdiction because the state law claims raise novel or complex issues of state law and substantially predominate over the federal claims. Defendant’s Memorandum at 27-28. Defendant also suggests that the exercise of supplemental jurisdiction is disfavored, id. at 27, and that “the case law evinces a" }, { "docid": "939655", "title": "", "text": "substantially predominate over the four distinct federal strict liability claims, nor do they present strikingly novel or complex issues of law. See Arawana Mills, 795 F.Supp. at 1248-49. Cf. Town of Jaffrey v. Town of Fitzwilliam, 846 F.Supp. 3, 6 (D.N.H.1994) (nine state law claims substantially predominated over two CERCLA claims; state law claims presented several unsettled questions of state law). Indeed, except for perhaps Count VII (ultrahazar-dous activity), the plaintiffs’ state law claims are fairly common and straightforward. Kleen Laundry & Dry Cleaning Services, Inc. v. Total Waste Management, Inc., 1994 W.L. 287747, *5 (D.N.H. June 28, 1994); Arawana Mills, 795 F.Supp. at 1248. Moreover, this court, sitting in Maine and being familiar with Maine law, is competent to make a determination based on Maine law whether the plaintiffs may assert specific claims under state law. See Kleen Laundry, 1994 W.L. 287747 at *4 (distinguishing Town of Jaffrey); see also Hanlin Group, Inc. v. International Minerals & Chem. Corp., 759 F.Supp. 925, 933 (D.Me.1990) (determination on claim for ultrahazardous activity under Maine law). As for the scope of relief available under Maine law, the fact that the remedies available on the state claims differ from those available on the federal claims does not mean that the state claims substantially predominate over the federal claims. White, 985 F.2d at 172; New York v. Shore Realty Corp., 759 F.2d 1032, 1050 (2d Cir.1985); Arawana Mills, 795 F.Supp. at 1248-49. Each one of the plaintiffs’ nine claims, federal and state, seeks a specific remedy for a specific harm or injury. Finally, to the extent that the state claims involve issues triable to a jury, whereas the majority of the federal claims do not, I believe that the resolution of the nonjury federal issues may be easily directed to the court after the presentation of the entire case without likely causing juror confusion. But see Town of Jaffrey, 846 F.Supp. at 6. In the absence of juror confusion, interests of judicial economy, convenience and fairness dictate, especially at this late date, that the state and federal claims be tried together in a combined" }, { "docid": "11086109", "title": "", "text": "Underwriters v. P.F.C. Management Corporation, No. 1:87-CV-273, 1994 U.S.Dist. LEXIS 12958 (W.D.Mich. August 10,1994). The analysis of jurisdiction cannot end here. The plaintiffs were granted leave to amend their complaint and join additional defendants. The City of Milwaukee was added in 1995, as part of the amended complaint. The City of Milwaukee, however, is not third-party defendant, and therefore, the Court’s Decision and Order of August 19, 1996 is inapplicable. In the Court’s Decision and Order dated March 28, 1995, the Court concluded that the plaintiffs amendment adding new parties should relate back “if not to the time of the original complaint, at least to the time that the plaintiffs request to amend was filed.” (Court’s Decision and Order, March 28, 1995 at pgs. 14-15.) Obviously, the Court’s Decision and Order of March 28, 1995, does not solve the presented issue. The original complaint was filed in 1989, before the enactment of Section 1367; plaintiffs request to amend was filed in December, 1991, after the enactment of Section 1367. The Court, therefore, will turn its attention to the underlying principle of Section 1367, pendent jurisdiction. The plaintiffs brought pendent state law claims. The exercise of pendent jurisdiction in CERCLA claims is favored. Arawana Mills Co. v. United Technologies Corp., 795 F.Supp. 1238, 1248 (D.Conn.1992). In Amwana Mills, a landlord was allowed to bring state-law claims pendent to a CERC-LA claim. Id. Similarly, in State of N.Y. v. Shore Realty Corp., 759 F.2d 1032, 1050 (2d Cir.1985), the court recognized that federal CERCLA and state nuisance claims “clearly derived from a common nucleus of operative facts and the State would ordinarily be expected- to try them all in one proceeding.” Id. (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966)). Applying that law here, the court can rightfully exercise jurisdiction over the related state-law claims raised by the plaintiffs. The plaintiffs state-law claims of negligence, nuisance, and property damage relate directly to the same case or controversy of the the federal CERCLA claims. Both the federal and state claims derive from a" }, { "docid": "6842064", "title": "", "text": "claims that arise from the same nucleus of operative fact as the plaintiffs federal claims and when the plaintiff would ordinarily be expected to try all the claims in one judicial proceeding.”) (citing Kansas Public Employees Retirement Sys.); Meyers v. Trinity Med. Ctr., 983 F.2d 905, 907 (8th Cir. 1993); Alumax Mill Prods., Inc. v. Congress Fin. Corp., 912 F.2d 996, 1005 (8th Cir.1990); Appelbaum v. Ceres Land Co., 687 F.2d 261, 262-63 (8th Cir.1982); Wristr-Rocket Mfg. Co., Inc. v. Saunders Archery Co., 578 F.2d 727, 734-35 (8th Cir.1978). In sum, supplemental jurisdiction under subsection (a), is appropriate where the federal-law claims and the state-law claims in the case “derive from a common nucleus of operative fact” and are such that a plaintiff would ordinarily be expected to bring all of the claims in one suit. See Kansas Public Employees Retirement Sys., 77 F.3d at 1067. Once the court has determined supplemental jurisdiction is proper under subsection (a), subsection (c) provides the list of circumstances under which the court can decline to exercise such supplemental jurisdiction: (c)The district court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— (1) the claim raises a novel or complex issue of State law, . ' (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction; (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are • other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c); see International Ass’n of Firefighters of St. Louis, Franklin and Jefferson v. City of Ferguson, 283 F.3d 969, 976 (8th Cir.2002) (noting, without expressing an opinion as to what the district court should do on remand, that a district court “would always be free ... to proceed on the merits of the state claim, in its discretion, even if one of the conditions in 28 U.S.C. § 1367(c) for dismissal of the state claim had been satisfied.”); Southern Council of Industrial Workers v. Ford, 83 F.3d 966, 969 (8th Cir.1996) (“Where original jurisdiction exists," }, { "docid": "14815693", "title": "", "text": "claims are all based upon the same alleged discriminatory acts and, given the duplication and waste of judicial resources that separate trials would entail, plaintiff would be expected to try them all in a single proceeding. Id. at 352-53. Accordingly, the court finds that it has the power to exercise supplemental jurisdiction over plaintiff’s state law claims, subject only to the narrow circumstances detailed by Congress. See, e.g., Cedillo v. Valcar Enterprises & Darling Delaware Co., 773 F.Supp. 932, 939 (N.D.Tex.1991) (“If the claim is within the court’s supplemental discretion, the court must exercise such jurisdiction unless one of the four categorical exceptions in § 1367(c) is satisfied”). After careful consideration, the court is satisfied that none of the grounds upon which it could decline to hear plaintiff’s state law claims are relevant. As the Title VII claim has not been dismissed, section 1367(c)(3) has no application to the present facts. Furthermore, plaintiff’s state claims do not predominate over her Title VII claim. 28 U.S.C. § 1367(c)(2). Under the statute, clauses (1) and (2) over lap, as they have under prior “caselaw-based ‘abstention’ doctrines,” Siegel, supra, at 235, with clause (2) similar to the line of abstention cases that began with Burford v. Sun Oil Co., 319 U.S. 315, 63 5.Ct. 1098, 87 L.Ed. 1424 (1943). Id. However, Burford abstention is generally not warranted unless the case is one in which federal court intervention will unnecessarily threaten to impede the ongoing administration of a state regulatory system. Trailer Marine Transport Corp. v. Rivera-Vazquez, 931 F.2d 961, 964 (1st Cir.1991). Here, there is no comprehensive plan of state regulation at issue. Lastly, plaintiff’s state claims do not present any novel or complex issues of state law. 28 U.S.C. § 1367(c)(1). For the most part, the issues presented are settled and are areas with which the court has previously grappled. See e.g., Chamberlin v. 101 Realty, Inc., 626 F.Supp. 865, 867-68 (D.N.H.1985) (wrongful discharge); Orono Karate, Inc. v. Fred Villari Studio of Self Defense, Inc., 776 F.Supp. 47, 50-51 (D.N.H.1991) (intentional and negligent infliction of emotional distress); DeMeo v. Goodall, 640 F.Supp." }, { "docid": "972861", "title": "", "text": "the issues raised, or the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals.” United Mine Work ers v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). The test articulated in Gibbs has been codified in 28 U.S.C. § 1367(c). It is clear from Craig Lyle’s complaint that its state law claims predominate over the RCRA claim. Craig Lyle has asserted claims of trespass, negligence, nuisance, strict liability and environmental tort. Those state law claims involve issues triable to a jury and are subject to various state law defenses. If Craig Lyle were successful on those state claims, it would be entitled to compensatory damages. However, under RCRA, Craig Lyle would only be entitled to injunctive relief. Damages are not available under RCRA. See Kaufman & Broad-South Bay v. Unisys Corp., 822 F.Supp. 1468, 1476-77 (N.D.Cal.1993); Gache v. Town of Harrison, N.Y., 813 F.Supp. 1037, 1045 (S.D.N.Y.1993); Commerce Holding Co., Inc. v. Buckstone, 749 F.Supp. 441, 445 (E.D.N.Y. 1990). Craig Lyle’s state law claims also raise unsettled issues of state law that are more properly addressed in state courts. Other courts have declined to exercise pendent or supplemental jurisdiction over similar state law claims when they have predominated over a plaintiffs federal claim. See Town of Jaffrey v. Town of Fitzwilliam, 846 F.Supp. 3 (D.N.H.1994); Dublin Scarboro Improvement Ass’n v. Harford County, Md., 678 F.Supp. 129 (D.Md.1988). Considering the state court proceeding has been stayed, the court finds that the parties will not suffer any prejudice. Accordingly, the court dismisses without prejudice Craig Lyle’s state law claims. CONCLUSION Based on a review of the record, file and proceedings, and the reasons stated above, IT IS HEREBY ORDERED that: 1. Plaintiffs motion for summary judgment is denied; 2. Defendant’s motion for summary judgment is denied; 3. Plaintiffs state law claims are dismissed without prejudice. . The court notes that the MPCA reserved the right to request further action if needed. It also specifically stated that the letter did not relieve any party of liability for" }, { "docid": "16980828", "title": "", "text": "strict responsibility misrepresentation; (10) contribution/indemnifieation; and (11) breach of contract. This Court may exercise supplemental jurisdiction over state law claims pursuant to 28 U.S.C. § 1367. The Court may also decline to exercise supplemental jurisdiction over a claim if “(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c); see also, United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Insofar as “pendant jurisdiction is a doctrine of discretion, not of plaintiffs right,” Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139, McGraw-Edison urges the Court to decline supplemental jurisdiction. It asserts that Raytheon’s state law claims substantially predominate over its federal claims, citing the breadth of evidence needed, the introduction of a jury and possible juror confusion, and the frustration of the expeditious resolution of the federal claims. Some courts find that such considerations weigh strongly against exercising supplemental jurisdiction, while others find these considerations unpersuasive. Compare, e.g., Town of Jaffrey v. Town of Fitzwilliam, 846 F.Supp. 3 (D.N.H.1994) (state claims predominate); United States v. Colorado & Eastern R.B., 832 F.Supp. 304 (D.Colo.1993) (same); Commerce Holding Co. v. Buck-stone, 749 F.Supp. 441, (E.D.NY.1990) (same), with Arawana Mills Co. v. United Technologies Corp., 795 F.Supp. 1238, 1248-49 (D.Conn.1992) (quoting State of N.Y. v. Shore Realty Corp., 759 F.2d 1032 (2nd Cir. 1985)) (“Our Court of Appeals favors the exercise of pendent jurisdiction ... [and has] explicitly held that ‘it is irrelevant that the scope of relief under state law differs from that under federal law.’ ”). This District has noted that the “exercise of pendent jurisdiction in CERCLA claims is favored.” INX Int’l Ink Co. v. Delphi Energy & Engine Management Sys., 943 F.Supp. 993 (E.D.Wis.1996) (Warren, J., presiding). In keeping with the latter view, the Court exercises supplemental jurisdiction over" }, { "docid": "17049158", "title": "", "text": "original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(a), (c). The Supreme Court has held that, in order for a district court to have supplemental jurisdiction over a state law claim, “the federal claim must have substance sufficient to confer subject matter jurisdiction on the court. The state and federal claims must derive from a common nucleus of operative facts. But if, considered without regard to their federal or state character, a plaintiffs claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). In addition, “supplemental jurisdiction is not limited to restatements of the same basic ground for recovery ... The claims need only revolve around a central fact pattern.” White v. County of Newberry, S.C., 985 F.2d 168, 172 (4th Cir.1993). In this case, supplemental jurisdiction over the Illinois claim is appropriate. Both the federal claim, a violation of the Lanham Act, and the state claim, a violation of the Illinois Uniform Deceptive Trade Practices Act, arise from the same nucleus of operative facts, specifically, Defendant’s alleged use of Plaintiffs trademark on Defendant’s Internet website, as Defendant’s domain name, and on Defendant’s labels of goods. Furthermore, there are no factors under 28 U.S.C. § 1367(c) that would warrant this Court to decline jurisdiction over the state claim. Finally, the Court notes several Illinois cases involving alleged trademark infringement over the Internet that have been brought and decided under both the federal Lanham Act and related Illinois state laws. LFG, 78 F.Supp.2d 731; Juno, 979 F.Supp. 684; Intermatic, 947 F.Supp. 1227. This Court will exercise supplemental jurisdiction over the Illinois trademark action. V. MOTION TO STAY THE PROCEEDINGS Plaintiff owns a number of foreign trademark and service mark registrations for the “Crate & Barrel” and “CRATE AND BARREL” marks, including registrations in Ireland, the United Kingdom, and" }, { "docid": "16980829", "title": "", "text": "juror confusion, and the frustration of the expeditious resolution of the federal claims. Some courts find that such considerations weigh strongly against exercising supplemental jurisdiction, while others find these considerations unpersuasive. Compare, e.g., Town of Jaffrey v. Town of Fitzwilliam, 846 F.Supp. 3 (D.N.H.1994) (state claims predominate); United States v. Colorado & Eastern R.B., 832 F.Supp. 304 (D.Colo.1993) (same); Commerce Holding Co. v. Buck-stone, 749 F.Supp. 441, (E.D.NY.1990) (same), with Arawana Mills Co. v. United Technologies Corp., 795 F.Supp. 1238, 1248-49 (D.Conn.1992) (quoting State of N.Y. v. Shore Realty Corp., 759 F.2d 1032 (2nd Cir. 1985)) (“Our Court of Appeals favors the exercise of pendent jurisdiction ... [and has] explicitly held that ‘it is irrelevant that the scope of relief under state law differs from that under federal law.’ ”). This District has noted that the “exercise of pendent jurisdiction in CERCLA claims is favored.” INX Int’l Ink Co. v. Delphi Energy & Engine Management Sys., 943 F.Supp. 993 (E.D.Wis.1996) (Warren, J., presiding). In keeping with the latter view, the Court exercises supplemental jurisdiction over Raytheon’s state law claims. y As for the merits of these claims, there is a strong argument for the dismissal of all of the tort claims (specifically, pendent claims I-V and VII-IX) on the basis of the economic loss doctrine. “Like many other states, Wisconsin has adopted the ‘economic loss doctrine,’ pursuant to which a party bringing a tort claim cannot recover damages that are solely ‘economic’ in character if its claim arises out of a commercial transaction.” Stoughton Trailers, Inc. v. Henkel Corp., 965 F.Supp. 1227, 1230 (W.D.Wis.1997). Raytheon’s tort claims seek damages “including, but not limited to, a decline in value of the Property, the loss of its use and enjoyment of the Property, stigma damages, and the incurring of substantial cost for the environmental investigation and subsequent remediation of the Property.” (Am. Compl. at ¶¶ 51, 56, 61, 67, 76, 95,102,109.) McGraw-Edison argues that the same are claims for economic losses not recoverable in tort. Raytheon counters that this is not the type of act on to which the economic loss rule" }, { "docid": "17049157", "title": "", "text": "Plaintiff has made a prima facie ease for personal jurisdiction over Limited under both the due process analysis and the amenability to service test, and personal jurisdiction is reasonable. Therefore, the Court denies Limited’s motion to dismiss for lack of personal jurisdiction. IV. SUPPLEMENTAL JURISDICTION OVER STATE LAW CLAIMS. Supplemental jurisdiction is proper over state law claims in the following situations: (a) [I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United states Constitution. (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(a), (c). The Supreme Court has held that, in order for a district court to have supplemental jurisdiction over a state law claim, “the federal claim must have substance sufficient to confer subject matter jurisdiction on the court. The state and federal claims must derive from a common nucleus of operative facts. But if, considered without regard to their federal or state character, a plaintiffs claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). In addition, “supplemental jurisdiction is not limited to restatements of the same basic ground for recovery ... The claims need only revolve around a central fact pattern.” White v. County of Newberry, S.C., 985 F.2d 168, 172 (4th Cir.1993)." }, { "docid": "11086110", "title": "", "text": "attention to the underlying principle of Section 1367, pendent jurisdiction. The plaintiffs brought pendent state law claims. The exercise of pendent jurisdiction in CERCLA claims is favored. Arawana Mills Co. v. United Technologies Corp., 795 F.Supp. 1238, 1248 (D.Conn.1992). In Amwana Mills, a landlord was allowed to bring state-law claims pendent to a CERC-LA claim. Id. Similarly, in State of N.Y. v. Shore Realty Corp., 759 F.2d 1032, 1050 (2d Cir.1985), the court recognized that federal CERCLA and state nuisance claims “clearly derived from a common nucleus of operative facts and the State would ordinarily be expected- to try them all in one proceeding.” Id. (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966)). Applying that law here, the court can rightfully exercise jurisdiction over the related state-law claims raised by the plaintiffs. The plaintiffs state-law claims of negligence, nuisance, and property damage relate directly to the same case or controversy of the the federal CERCLA claims. Both the federal and state claims derive from a common nucleus of operative fact, and therefore, should be tried in the same proceeding. - In addition, the state-law claims are neither so novel nor so complex that pendent jurisdiction need be declined. Therefore, applying the concept of common law pendent jurisdiction, the Court has jurisdiction over the plaintiffs state-law claims. The Wisconsin Supreme Court has noted that subject matter jurisdiction is conferred by the State Constitution. Figgs v. City of Milwaukee, 121 Wis.2d 44, 51, 357 N.W.2d 548, 552 (1984). The Court ruled that statutory conditions or conditions precedent have nothing to do with the subject matter jurisdiction of the circuit court. Id. Similarly, the Court here has jurisdiction conferred by a combination of the power of the Constitution of the State of Wisconsin and the principle of pendent jurisdiction, which gives this Court the power to decide the related state-law claims. B. State Law Must be Used to Determine Whether the Fourth, Fiñh and Sixth Claims Against the City of Milwaukee Ought to be Dismissed. Even though the Court has subject matter jurisdiction" } ]

[ { "docid": "22729685", "title": "", "text": "that his former attorney prepared his 1990 asylum application and that he had signed it without reading it. The BIA did not comment on Garrovillas’s explanation, nor suggest any reason that it found his explanation not credible. See Osorio, 99 F.3d at 933 (requiring Board or IJ, on remand, not only to identify specific inconsistencies, but also “address in a reasoned manner the explanations that [petitioner] offers for these perceived inconsistencies”). In itself, the inconsistency does not prove much. It is quite possible that the attorney who filed the application stretched the facts without informing Garrovillas. Moreover, there was no reason for Garrovil-las to disavow the earlier statement other than a desire to correct an error of which he had not been aware. His revised story served to lessen the degree of persecution he experienced, rather than to increase it. In addition, there is nothing in the record to suggest that Garrovillas had any reason to fear that a false assertion would be exposed at the hearing. Thus, as far as we can tell from the record, the most likely explanation for the change is a desire to tell the truth and to correct a false statement that reflected no culpable conduct on his part. If the inconsistency were accompanied by other indications of dishonesty, we might deem the BIA’s finding justified-had it offered a reason for rejecting Garrovillas’s explanation. As this court announced in Vilorio-Lopez v. INS, 852 F.2d 1137 (9th Cir.1988), however, “minor inconsistencies” cannot serve as the sole basis for an adverse credibility finding. Id. at 1142. Nor can inconsistences of less than substantial importance for which a plausible explanation is offered. Second, the BIA’s opinion states that “[w]e also find it disturbing that the respondent repeatedly refused to answer questions directed to him at the deportation hearing.” It fails, however, to refer to any specific examples of such behavior. From this single-sentence analysis, we cannot identify which of Garrovillas’s responses were inadequate or which questions he refused to answer. As the BIA appears to have adopted the IJ’s reasons for his negative credibility finding, we look" } ]

[ { "docid": "22723009", "title": "", "text": "beliefs are irrelevant). G The only inconsistency the IJ cites which arguably goes to the heart of Mr. Singh’s claim is his inability to recall whether he transported demonstrators to rallies “many times,” as he initially testified, or only once or twice, as he later testified. A single supported ground for an adverse credibility finding is sufficient if it “relates to the basis forfpetitioner’s] alleged fear of persecution” and goes to the heart of the claim. Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001) (quoting de Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir.1997)). An inconsistency goes to the heart of a claim if it concerns events central to petitioner’s version of why he was persecuted and fled. Id. at 1043 (citing Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.1990)). However, an inconsistency that concerns the basis for a petitioner’s claim of persecution will not necessarily support an adverse credibility finding. In Vilorio-Lopez v. INS, 852 F.2d 1137 (9th Cir.1988), the petitioner and his cousin testified that they were chased through the streets of San Salvador by a right-wing death squad. Id. at 1142. The IJ discredited the petitioner’s testimony because his testimony conflicted with his cousin’s as to the year of the incident, the length of time the men were sheltered from the death squad, and whether payment was made for their accommodation. Id. at 1139-40. In all other respects, the two men testified consistently. Id. at 1142. Even though the inconsistency concerned events central to petitioner’s version of why he was persecuted and fled, we rejected it as a basis for the IJ’s adverse credibility determination, holding that “[m]inor inconsistencies in the record such as discrepancies in dates which reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility-finding.” Id. at 1142 (citing Damaize-Job, 787 F.2d at 1337-38). Similarly, here, neither the IJ nor the Government points to any inconsistency in Mr. Singh’s testimony concerning his version of why he was persecuted and fled India, to wit, his transportation of the protesters on August 15, 1996," }, { "docid": "22322428", "title": "", "text": "(1) his failure to present evidence from a local or Nicaraguan church of his affiliation with Jehovah’s Witnesses; (2) Mejia-Paiz’s brother’s failure to state in his affidavit or by oral testimony how he would know his brother is a Jehovah’s Witness; and (3) Mejia-Paiz’s willingness to swear under oath, rather than affirm, contrary to the IJ’s personal belief that Jehovah’s Witnesses do not swear under oath. All three of these grounds constitute impermissible bases for the IJ’s adverse credibility finding. “Although an immigration judge’s credibility findings are granted substantial deference by reviewing courts,” Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir.1987), the IJ “must have a legitimate articulable basis to question the petitioner’s credibility, and must offer a specific, cogent reason for any stated disbelief.” Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994). “The testimony of the applicant, if credible ... may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 208.13(a) (1996); accord Turcios, 821 F.2d at 1402 (detailed testimony of petitioner mitigates the need for corroboration). Minor inconsistencies in the petitioner’s testimony “that were possibly the result of mistranslation or miscommunication, and are not material to [the petitioner’s] fear for his safety,” are not an adequate basis for an adverse credibility finding. Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988) (characterizing inconsistencies such as the year of death squad incident, length of time men were sheltered from death squad, and whether payment was made for accommodation as minor and immaterial to petitioner’s fear of safety); see also Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir.1986) (characterizing petitioner’s inconsistencies with respect to certain dates and the number of his children as “trivial errors” and insufficient to support an adverse credibility finding). Mejia-Paiz offered credible and unrefuted testimony that he is a Jehovah’s Witness. When asked by the INS attorney when he specifically became a Jehovah’s Witness, Mejia-Paiz answered he became a Jehovah’s Witness when he met one at the bank where he was working. Mejia-Paiz even offered to supply the name of his co-worker. Because his testimony was detailed, credible, and" }, { "docid": "22684545", "title": "", "text": "1015, 1022 (9th Cir.2003) (observing that “minor discrepancies” on points incidental to the asylum applicant’s claim of persecution—namely dates, normal work hours, and related details—could not support an adverse credibility determination); cf. Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988) (“[DJiscrepancies in dates which reveal nothing about an asylum applicant’s fear for [her] safety are not an adequate basis for an adverse credibility finding.”). Later cases have expanded the principle beyond dates, language problems and typographical errors, elevating its status to that of a general rule. See, e.g., Stoyanov v. INS, 172 F.3d 731, 736 (9th Cir.1999) (stating that where the inconsistency in the applicant’s testimony lessens the degree of persecution she experienced, such inconsistency “generally does not support an adverse credibility determination”) (emphasis added). The concern underlying each of our decisions in this arena has been to avoid premising an adverse credibility finding on an applicant’s failure to remember non-material, trivial details that were only incidentally related to her claim of persecution. See, e.g., Osorio v. INS, 99 F.3d 928, 931(9th Cir.1996) (“[T]rivial ’ errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible.”) (quotations omitted); Vilorio-Lopez, 852 F.2d at 1142 (observing that “[m]inor inconsistencies” that “reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding”). This concern is heightened where the alien receives the assistance of a translator to aid in the preparation of her asylum application. See, e.g., Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.2003) (“Inconsistencies due to an unscrupulous preparer, without other evidence of dishonesty ... do not provide a specific and cogent basis for an adverse credibility finding.”) (internal citation omitted) (emphasis added). The petitioner in this case would have us ignore the mass of serious, repeated and blatant inconsistencies in her testimony, and instead focus on the singular fact that one of the most damaging of her contradictions—the revelation that she was not in fact raped by the police—only served to weaken her claim. In other words," }, { "docid": "22731882", "title": "", "text": "for violating a law forbidding unmarried men and women from appearing together in public. DISCUSSION A. The Adverse Credibility Determination The BIA’s adverse credibility findings must be supported by substantial evidence in the record. See Shah v. INS, 220 F.3d 1062, 1066-67 (9th Cir.2000). When the BIA deems a person to be not credible, it must do so on an individualized basis and provide specific reasons for its disbelief. Id. at 1069-70. Where, as here, the BIA adopts the IJ’s credibility determination, we look through the BIA’s decision to examine the IJ’s reasons for deeming the person not credible. See Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir.1998). With these general principles in mind, we conclude that the adverse credibility determination in this case rested on impermissible grounds. 1. A Discrepancy Betiveen His Application and his Testimony on Being Beaten with a Hose. The IJ based her adverse credibility finding on an inconsistency between Bandari’s application, in which he states that he was sentenced to seventy-five lashes, and his testimony that he was whipped seventy-five times on the day the police caught him with Afsaneh. During the asylum hearing, Bandari consistently testified that he was whipped seventy-five times on the day the police picked him up. When the judge confronted him with the inconsistency between his testimony and his application, he repeated that he had been beaten seventy-five times on that day and not after the judge pronounced his sentence. The IJ erred in resting her adverse credibility determination on the inconsistency in dates between Bandari’s application and his testimony. Any alleged inconsistencies in dates that reveal nothing about a petitioner’s credibility cannot form the basis of an adverse credibility finding. Indeed, we have frequently characterized “discrepancies in dates which reveal nothing about an asylum applicant’s fear of his safety” to be “minor inconsistencies” that cannot form the basis of an adverse credibility finding. Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988); see also Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir.1986) (concluding that discrepancy between application and testimony on birthdates of petitioner’s children could not form" }, { "docid": "22649285", "title": "", "text": "circuit that have overturned an adverse credibility finding by the BIA or IJ despite inconsistencies have involved instances in which the contradictions were minor. See, e.g., Martinez-Sanchez v. INS, 794 F.2d 1396 (9th Cir. 1986) (reversing an adverse credibility finding based on inconsistencies in the number of children the applicant had and the date he joined a paramilitary group); Vilorio-Lopez v. INS, 852 F.2d 1137 (9th Cir.l988)(reversing an adverse credibility finding based on inconsistencies regarding the date of an incident and the length of time the petitioner hid from a death squad). The inconsistencies in Mrs. Pal’s story are not minor; rather, they go to the heart of her asylum application. The single event of persecution that she alleges is the 1987 rape. The numerous inconsistencies cast serious doubt on whether this event ever occurred. The credibility determination, based on inconsistencies in her testimony and between her testimony and application, finds support in the record. At the very least, the record does not compel the opposite conclusion. Ill Mrs. Pal contends that the BIA violated due process when it affirmed the adverse credibility finding of the IJ, but rested its finding on certain grounds not referenced by the IJ. For this contention she relies on Campos-Sanchez v. INS, 164 F.3d 448 (9th Cir.1999). In Campos-Sanchez, the court held that “the BIA erred in failing to provide Campos-Sanchez with a reasonable opportunity to offer explanations for alleged discrepancies” where the BIA’s adverse credibility finding followed explicit findings of credibility by the INS and the IJ. Id. at 449. The BIA did not rely on the grounds relied on by the IJ to deny Campos-Sanchez asylum; instead it rejected his application for asylum solely on the basis of its adverse credibility finding. See id. at 449-50. In ruling that the BIA must give the petitioner the opportunity to explain any inconsistencies, the court relied on the fact that Campos-Sanchez “had not been advised below that his credibility was questionable, or that any discrepancies appeared to exist.” Id. at 450. Unlike the petitioner in Campos-Sanchez, Mrs. Pal was found not to be credible" }, { "docid": "22736087", "title": "", "text": "F.3d 1069, 1073-74 (9th Cir.), amended by 290 F.3d 964 (9th Cir.2002). To support an adverse credibility determination, the BIA must have “a legitimate articulable basis to question the petitioner’s credibility, and must offer a specific, cogent reason for any stated disbelief.” Shah v. INS, 220 F.3d 1062, 1067 (9th Cir.2000) (quoting Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir.1998)). Inconsistencies in the petitioner’s statements must go to “the heart of [his] asylum claim” to justify an adverse credibility finding. Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001) (alteration in original) (quoting Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.1990)). “ ‘Minor inconsistencies’ that ‘reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding.’” Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996) (quoting Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988)). Thus, we must determine whether the evidence cited by the BIA supports its adverse credibility finding. Here, the BIA based its finding on alleged inconsistencies regarding the injuries Singh sustained from the police beating, the location of the January 1997 political rally, and Singh’s alleged unresponsiveness during the hearing. Each of these reasons is discussed in turn. 1. Singh’s Injuries The BIA found Singh’s testimony regarding the injuries he sustained from the police beating not to be credible, on the ground that it was inconsistent with Dr. Gursharan Singh’s letter. However, not only was Singh’s testimony not inconsistent, it was also corroborated by physical evidence. First, the BIA stated the letter to be inconsistent with Singh’s testimony because the letter noted “injuries to [Singh’s] lips, nose, feet, and groin” but did not mention any injury to his arms. However, the omission in the doctor’s letter does not make the two accounts inconsistent. The term “inconsistent” is defined in Webster’s Dictionary as “lacking in correct logical relation: contradictory” or “not in agreement or harmony: incompatible.” Webster’s II New College Dictionary 561 (1st ed.1995). Had the letter stated that Singh was not treated for injuries or that Singh had no burns on his arms or that" }, { "docid": "22684544", "title": "", "text": "336 F.3d 989, 993 (9th Cir.2003). However, an IJ must provide specific and cogent reasons to support an adverse credibility determination. See He v. Ashcroft, 328 F.3d 593, 595 (9th Cir.2003). III. ANALYSIS In this case, the issue is not whether the IJ provided specific and cogent reasons to support his credibility determination, but rather whether the proffered reasons were based on impermissible grounds. We conclude that they were not. It is well settled in our circuit that minor inconsistencies that do not go to the heart of an applicant’s claim for asylum cannot support an adverse credibility determination. Akinmade v. INS, 196 F.3d 951, 954 (9th Cir.1999) (citing Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir.1986)). Additionally, in Damaize-Job v. INS, we first announced that “minor discrepancies in dates that are attributable to the applicant’s language problems or typographical errors and cannot be viewed as attempts by the applicant to enhance his claims of persecution have no bearing on credibility.” 787 F.2d 1332, 1337 (9th Cir.1986). See also Wang v. Ashcroft, 341 F.3d 1015, 1022 (9th Cir.2003) (observing that “minor discrepancies” on points incidental to the asylum applicant’s claim of persecution—namely dates, normal work hours, and related details—could not support an adverse credibility determination); cf. Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988) (“[DJiscrepancies in dates which reveal nothing about an asylum applicant’s fear for [her] safety are not an adequate basis for an adverse credibility finding.”). Later cases have expanded the principle beyond dates, language problems and typographical errors, elevating its status to that of a general rule. See, e.g., Stoyanov v. INS, 172 F.3d 731, 736 (9th Cir.1999) (stating that where the inconsistency in the applicant’s testimony lessens the degree of persecution she experienced, such inconsistency “generally does not support an adverse credibility determination”) (emphasis added). The concern underlying each of our decisions in this arena has been to avoid premising an adverse credibility finding on an applicant’s failure to remember non-material, trivial details that were only incidentally related to her claim of persecution. See, e.g., Osorio v. INS, 99 F.3d 928, 931(9th Cir.1996) (“[T]rivial" }, { "docid": "20954318", "title": "", "text": "and Hoxha’s sworn testimony, closely relate to this alleged persecution. These inconsistencies include: discrepancies surrounding the date on which police set fire to Hoxha’s home and omissions concerning whether police admitted setting the fire; discrepancies surrounding the year in which Hoxha was beaten following his participation in the mayoral elections;. omissions concerning whether Hoxha and his wife were beaten and detained by police in October 2000; discrepancies surrounding the year in which Hoxha sold his business and his reasons for selling it; discrepancies surrounding the date on which Hox-ha’s son returned from the hospital after being injured by artillery fired at Hoxha’s home; and omissions concerning whether Hoxha was beaten by civilians after briefly returning to Tirana in December 2001. Far from trivial, the numerous inconsistencies cited by the IJ involve the heart of Hoxha’s asylum claim and thus support the IJ’s adverse credibility finding. Compare Bojorques-Villanueva, 194 F.3d at 17 (holding that the BIA’s adverse credibility finding was supported by substantial evidence where “the inconsistencies noted by the Board were more than several and more than minor, such as an error in dates or typographical error” and “the multiple inconsistencies went to the central facts,” i.e., “the where, the who, the when and the what” of the triggering event), and In re A-S-, 21 I & N Dec. at 1110 (holding that “the omission of key events [] coupled with numerous [date] inconsistencies,” was a “specific and cogent reason supporting the [IJ]’s adverse credibility finding”), with Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988) (“Minor inconsistencies in the record such as discrepancies in dates which reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding.”), and Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir.1986) (holding that two “trivial errors” in an otherwise consistent record “did not constitute a valid ground upon which to base a finding that an asylum applicant is not credible”). b. Legitimate Nexus Hoxha further argues that “even assuming that some of the discrepancies contained in the written statements involved matters central to [his]" }, { "docid": "22731883", "title": "", "text": "seventy-five times on the day the police caught him with Afsaneh. During the asylum hearing, Bandari consistently testified that he was whipped seventy-five times on the day the police picked him up. When the judge confronted him with the inconsistency between his testimony and his application, he repeated that he had been beaten seventy-five times on that day and not after the judge pronounced his sentence. The IJ erred in resting her adverse credibility determination on the inconsistency in dates between Bandari’s application and his testimony. Any alleged inconsistencies in dates that reveal nothing about a petitioner’s credibility cannot form the basis of an adverse credibility finding. Indeed, we have frequently characterized “discrepancies in dates which reveal nothing about an asylum applicant’s fear of his safety” to be “minor inconsistencies” that cannot form the basis of an adverse credibility finding. Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988); see also Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir.1986) (concluding that discrepancy between application and testimony on birthdates of petitioner’s children could not form a proper basis for an adverse credibility finding). The discrepancy in this case relates to the date on which Bandari received a particular type of beating with a specific kind of instrument among many attacks the police inflicted over several days. There is no indication anywhere in the record as to why the petitioner would lie about the date on which the police whipped him. We therefore cannot affirm the IJ’s adverse credibility finding on this ground. Moreover, as we recently explained, “we will not uphold an adverse credibility finding unless the IJ or BIA specifically explains the significance of the discrepancy or points to the petitioner’s obvious evasiveness when asked about it.” Shah v. INS, 220 F.3d at 1068; see also Vilorio-Lopez, 852 F.2d at 1142. The IJ in this case failed to state the significance of the inconsistency in dates or to point us to any obvious evasiveness in Bandari’s testimony when she confronted him with it. We cannot affirm the credibility finding on this basis. 2. A Discrepancy Between his Statement on" }, { "docid": "22614296", "title": "", "text": "his father’s arrival, that Petitioner had no incentive to lie about the date, and that Petitioner on several occasions tried to correct his testimony in a manner consistent with his earlier statement at his asylum interview. Moreover, other than INS’s desire to catch Petitioner in a lie, it is altogether unclear why the date of his father’s arrival in the United States was in any way relevant to Petitioner’s claim. No one disputes that Petitioner’s father was in India at the time of the alleged persecution. Under Ninth Circuit law, the discrepancy in the testimony described above is not a sufficient basis for an adverse credibility determination. See Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999) (“Inconsistencies of less than substantial importance for which a plausible explanation is offered cannot form the sole basis for an adverse credibility finding.”) (citation and internal quotation marks omitted); Garrovillas v. INS, 156 F.3d 1010, 1014 (9th Cir.1998) (reversing an adverse credibility finding based on discrepancy between an asylum application and testimony where “the most likely explanation for the change is a desire to tell the truth and to correct a false statement that reflected no culpable conduct on his part”); Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988) (“Minor inconsistencies in the record such as discrepancies in dates which reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding.”) (citation omitted). In short, the discrepancy between Petitioner’s asylum interview and his testimony was based on his admittedly fuzzy recollection of that date, and Petitioner immediately clarified his actual testimony to explain any discrepancy. The fact that Petitioner had testified with great specificity about dates on which the alleged persecution took place, but had difficulty recalling the date of his father’s emigration, was not substantial evidence supporting an adverse credibility determination. IV. The second basis for the BIA’s credibility determination stemmed from the failure of Petitioner’s father to appear at Petitioner’s hearing. Petitioner testified on cross-examination that his father lives with him in Yorba Linda, California. At that point, the following exchange" }, { "docid": "22221673", "title": "", "text": "to hide from the Awami League. A review of the record reveals no such inconsistency. Ahsan-ul’s wife testified that he hid overnight at a friend’s home on seven or eight occasions during the month after his kidnaping and subsequent hospitalization. Ahsanul was never asked whether he went into hiding during this time period. Nor was he asked to tell the court about all of the occasions on which he hid from the Awami League. Ahsanul’s failure to testify about these occasions of temporary hiding does not make his testimony inconsistent with that of his wife. Cf. He, 328 F.3d at 601 (accepting petitioner’s explanation that he did not mention a particular event earlier in his testimony in part because “he had not been asked about it”); see also Singh v. Ashcroft, 301 F.3d 1109, 1112 (9th Cir.2002) (explaining that an omission is not the equivalent of an inconsistency). Moreover, minor omissions or inconsistencies regarding the exact dates and the amount of time Ahsanul spent in hiding cannot form the basis of an adverse credibility determination. See Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988) (holding that inconsistencies between the testimony of petitioner and that of his cousin regarding the amount of time they hid from a death squad and how much they paid the man who hid them did not go to the heart of the asylum claim and thus could not form the basis of an adverse credibility finding). The IJ also found Morsheda’s testimony regarding the dates Ahsanul spent in hiding unresponsive, internally inconsistent, and hesitant. The record does not support this finding. See Singh, 301 F.3d at 1111 (“To support an adverse credibility determination based on unresponsiveness, the BIA[or IJ] must identify particular instances in the record where the petitioner refused to answer questions asked of him.”); Akinmade, 196 F.3d at 956 (inconsistencies that are possibly the result of mistranslation or miscommunication are not a sufficient basis for an adverse credibility finding). The IJ found contradiction in Morshe-da’s failure to mention two incidents that her husband had discussed in his testimony, the May 1996 demonstration and" }, { "docid": "20954319", "title": "", "text": "more than minor, such as an error in dates or typographical error” and “the multiple inconsistencies went to the central facts,” i.e., “the where, the who, the when and the what” of the triggering event), and In re A-S-, 21 I & N Dec. at 1110 (holding that “the omission of key events [] coupled with numerous [date] inconsistencies,” was a “specific and cogent reason supporting the [IJ]’s adverse credibility finding”), with Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988) (“Minor inconsistencies in the record such as discrepancies in dates which reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding.”), and Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir.1986) (holding that two “trivial errors” in an otherwise consistent record “did not constitute a valid ground upon which to base a finding that an asylum applicant is not credible”). b. Legitimate Nexus Hoxha further argues that “even assuming that some of the discrepancies contained in the written statements involved matters central to [his] asylum claim,” these discrepancies bear no “legitimate nexus” to the IJ’s adverse credibility finding. “A reasonable factfinder upon review of the entire record,” Hoxha contends, “would be compelled to conclude that the discrepancies in the statements indicated not negative credibility, but sloppy and irresponsible lawyering.” In support of this argument, Hoxha notes that both declarations were “written in broken English replete with grammatical and spelling errors, typos, and long passages of boilerplate legal language unrelated to [his] specific asylum claim.” Many of the discrepancies in dates, Hoxha argues, “seem indicative of typographical errors rather than lack of credibility,” such as where the June 2002 declaration erroneously states that the fire at the home of Hoxha’s father started on “March 3, 1998” instead of on March 31, 1998. Hoxha also contends that he was wholly unprepared for questioning regarding the inconsistencies between his first and second declarations, and between those declarations and his testimony, because his lawyer did not review the declarations with him prior to the hearing before the IJ. Hoxha supports this contention by" }, { "docid": "22648115", "title": "", "text": "227 F.3d 1160, 1166 (9th Cir.2000) (finding that a discrepancy in the date the petitioner was beaten and arrested by police for having an inter-faith relationship did not go to the heart of the petitioner’s asylum claim); Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988) (as amended) (holding that a discrepancy regarding the date on which the petitioners claimed they had been chased by a death squad was minor and could not serve as the basis for an adverse credibility determination); Damaize-Job, 787 F.2d at 1337 (finding that an inconsistency between the petitioner’s oral testimony and his asylum application regarding the year in which his daughter was born was “trivial” and could not support an adverse credibility determination). Here, the IJ failed to state why the hiring date inconsistency is relevant to Don’s asylum claim or even whether it reveals anything about his fear for his safety. The hiring date of the cook had absolutely no significance to Don at the time it occurred. Don would have had no reason whatsoever to remember the hiring date, because the date only acquired any significance in the course of these asylum proceedings. Thus, it is clear that in making the adverse credibility finding, the IJ impermissibly “picked at minor memory lapses and inconsistencies on issues at the periphery of [petitioner’s] asylum claim.” Shire v. Ashcroft, 388 F.3d 1288, 1298 (9th Cir.2004) (quoting Kebede v. Ashcroft, 366 F.3d 808, 811 (9th Cir.2004)). Even if the date discrepancy were material to Don’s claim, “[a]n adverse credibility finding is improper when an IJ fails to address a petitioner’s explanation for a discrepancy or inconsistency,” Singh v. Gonzales, 439 F.3d 1100, 1106 (9th Cir. 2006) (quoting Kaur v. Ashcroft, 379 F.3d at 887), or when the IJ fails to “address in a reasoned manner the explanations that [petitioner] offers for these perceived inconsistencies,” Osorio, 99 F.3d at 933. See also Guo v. Ashcroft, 361 F.3d 1194, 1201 (9th Cir.2004). The IJ failed to address Don’s plausible explanation that he lied to police in Sri Lanka regarding the cook’s hiring date because he was afraid for" }, { "docid": "22340784", "title": "", "text": "(9th Cir.1993). ANALYSIS We review credibility findings under a substantial evidence standard: “We do not accept blindly an IJ’s conclusion that a petitioner is not credible. Rather, we examine the record to see whether substantial evidence supports that conclusion and determine. whether the reasoning employed by the IJ is fatally flawed.” Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir.1990). The immigration judge “must have a legitimate ar-ticulable basis to question the petitioner’s credibility, and must offer a specific, cogent reason for any stated disbelief,” Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994); see also, e.g., Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir.1996) (citing Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir.1987)); Paredes-Urrestarazu v. INS, 36 F.3d 801, 817 (9th Cir.1994), and any such reasons “must be substantial and bear a legitimate nexus to the finding.” Mosa, 89 F.3d at 604; Aguilera-Cota, 914 F.2d at 1381. Moreover, “trivial errors” by an asylum applicant do not constitute “a valid ground upon which to base a finding that an asylum applicant is not credible.” Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir.1986) (quoting Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir.1986)). “Minor inconsistencies” that “reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding.” Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988). Similarly, the omission of details from an applicant’s earlier testimony cannot serve as the basis for an adverse credibility finding: “If minor inconsistencies or misrepresentations of unimportant facts cannot constitute the basis for an adverse credibility finding, a fortiori minor omissions cannot.” Aguilera-Cota, 914 F.2d at 1382. In the present case, the mere statement that Osorio was “not credible” because of “inconsistencies” in his testimony does not begin to provide the “specific, cogent reason[s] for any stated disbelief’ that this court requires. Hartooni, 21 F.3d at 342. Because neither the Board nor the immigration judge identified the specific inconsistencies on which they based their finding that Osorio was not credible, we cannot conclude that the adverse credibility finding was supported by substantial evidence." }, { "docid": "22614297", "title": "", "text": "the change is a desire to tell the truth and to correct a false statement that reflected no culpable conduct on his part”); Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988) (“Minor inconsistencies in the record such as discrepancies in dates which reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding.”) (citation omitted). In short, the discrepancy between Petitioner’s asylum interview and his testimony was based on his admittedly fuzzy recollection of that date, and Petitioner immediately clarified his actual testimony to explain any discrepancy. The fact that Petitioner had testified with great specificity about dates on which the alleged persecution took place, but had difficulty recalling the date of his father’s emigration, was not substantial evidence supporting an adverse credibility determination. IV. The second basis for the BIA’s credibility determination stemmed from the failure of Petitioner’s father to appear at Petitioner’s hearing. Petitioner testified on cross-examination that his father lives with him in Yorba Linda, California. At that point, the following exchange occurred between Petitioner and INS counsel: Q. Sir, do you have any proof that your father’s in the United States? A. Other than himself? I mean do you want to see him or — yes, I do. You can — . Q. Do you have it here in Court? [Petitioner’s counsel objects, and the objection is overruled.] Q. Sir, do you have any proof that your father is in the United States? A. What type of proof do I need to submit? Q. Sir, is that no? Do you have anything in Court today? A. No. Today? No. Q. Sir, is there — is there any reason your father isn’t here in Court today to corroborate your testimony? A. Well, I did not feel that it was very relevant for him to come with me today because I do carry a very separate asylum application and for him to be here today—I didn’t feel it was relevant. It takes approximately 45 minutes to drive from downtown Yorba Linda to downtown Los Angeles, where the hearing" }, { "docid": "22649284", "title": "", "text": "Mrs. Pal’s testimony that the family lived with relatives for the three years after the rape and prior to leaving Fiji contradicts her statement that she spent a year in New Zea-land during this time. Fourth, she states in her asylum application that her husband was unemployed following the 1987 incident while he stated he worked as a taxi driver at that time. Finally, the BIA found parts of Mrs. Pal’s account incredible. Mrs. Pal claimed that her attackers were members of the military based only on the fact that they were carrying weapons. But her attackers were not wearing uniforms and during the turmoil following the coup, many individuals other than members of the military were likely carrying weapons. Moreover, though Mrs. Pal stated that the reason the military men who attacked her were not wearing uniforms was fear of getting reported, she simultaneously insisted that members of the military would never get in trouble even if reported. Mrs. Pal’s testimony at trial is thus riddled with inconsistencies and vague assertions. Cases in this circuit that have overturned an adverse credibility finding by the BIA or IJ despite inconsistencies have involved instances in which the contradictions were minor. See, e.g., Martinez-Sanchez v. INS, 794 F.2d 1396 (9th Cir. 1986) (reversing an adverse credibility finding based on inconsistencies in the number of children the applicant had and the date he joined a paramilitary group); Vilorio-Lopez v. INS, 852 F.2d 1137 (9th Cir.l988)(reversing an adverse credibility finding based on inconsistencies regarding the date of an incident and the length of time the petitioner hid from a death squad). The inconsistencies in Mrs. Pal’s story are not minor; rather, they go to the heart of her asylum application. The single event of persecution that she alleges is the 1987 rape. The numerous inconsistencies cast serious doubt on whether this event ever occurred. The credibility determination, based on inconsistencies in her testimony and between her testimony and application, finds support in the record. At the very least, the record does not compel the opposite conclusion. Ill Mrs. Pal contends that the BIA violated" }, { "docid": "22648114", "title": "", "text": "F.3d 1234, 1238 (9th Cir.2000) (citation and internal quotation marks omitted). Moreover, “if [a] discrepancy] ‘cannot be viewed as [an] attempt[ ] by the applicant to enhance his claims of persecution [it] ha[s] no bearing on credibility.’ ” Chen v. INS, 266 F.3d 1094, 1100 (9th Cir.2001) (quoting Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir.1986)), overruled on other grounds by 537 U.S. 1016, 123 S.Ct. 549, 154 L.Ed.2d 423 (2002), adverse credibility determination aff'd on remand, 326 F.3d 1316 (9th Cir.2003). When compared to date inconsistencies that we previously have found inconsequential, the I J’s legal error in finding that the hiring date discrepancy went to the heart of Don’s asylum claim is obvious. See Zheng v. Ashcroft, 397 F.3d 1139, 1147 (9th Cir.2005) (as amended) (finding that discrepancy in date of forced abortion was a minor inconsistency); Wang v. Ashcroft, 341 F.3d 1015, 1021-22 (9th Cir.2003) (finding that a discrepancy regarding the date on which the petitioner’s wife had received two forced abortions by the Chinese government was minor); Bandari v. INS, 227 F.3d 1160, 1166 (9th Cir.2000) (finding that a discrepancy in the date the petitioner was beaten and arrested by police for having an inter-faith relationship did not go to the heart of the petitioner’s asylum claim); Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988) (as amended) (holding that a discrepancy regarding the date on which the petitioners claimed they had been chased by a death squad was minor and could not serve as the basis for an adverse credibility determination); Damaize-Job, 787 F.2d at 1337 (finding that an inconsistency between the petitioner’s oral testimony and his asylum application regarding the year in which his daughter was born was “trivial” and could not support an adverse credibility determination). Here, the IJ failed to state why the hiring date inconsistency is relevant to Don’s asylum claim or even whether it reveals anything about his fear for his safety. The hiring date of the cook had absolutely no significance to Don at the time it occurred. Don would have had no reason whatsoever to remember the" }, { "docid": "22768429", "title": "", "text": "by poor, illiterate people who do not speak English and are unable to retain counsel. Under these circumstances, the IJs cannot expect the answers provided in the applications to be as comprehensive or as thorough as they would be if set forth in a legal brief. In Martinez-Sanckez v. INS, 794 F.2d 1396, 1400 (9th Cir.1986), we reversed the IJ’s finding that the petitioner was not a credible witness. There the IJ had based his finding on inconsistencies in the record such as the date the petitioner joined a paramilitary group and the fact that he had listed two children on his asylum application when in fact he had four children. We reversed the IJ and the BIA, stating that such “ ‘trivial errors’ do not constitute ‘a valid ground upon which to base a finding that an asylum applicant is not credible.’ ” Id. (citation omitted). See also Vilorio-Lopez, 852 F.2d at 1142 (minor inconsistencies in the testimony of two individuals regarding the date of the incident, the length of time the men were sheltered from the death squad, and whether payment was made for their accommodation were not an adequate bases for an adverse credibility finding). If minor inconsistencies or misrepresentations of unimportant facts cannot constitute the basis for an adverse credibility finding, a fortiori minor omissions cannot. Clearly, Aguilera did not lie or misrepresent the facts on his asylum application. The IJ offered no explanation why Aguilera’s failure to mention the two collateral incidents in his application made him “not entirely credible,” since there were no contradictions between the information set forth in the application and his testimony. At the hearing, Aguilera testified that his cousin was killed by gunshots around the time that Archbishop Romero was killed, and that his niece was wounded by bullets when the guerrillas and the military engaged in combat in front of his home. While he did not specifically refer to these two incidents in his application, he did subsequently submit copies of his cousin’s death certificate and a newspaper article describing the incident involving his niece to support his oral" }, { "docid": "22688389", "title": "", "text": "failed to change the date on the stamp. Alternatively, the certificate may have been pre-stamped in the month of April. Since the discrepancy is capable of being attributed to a typographical or clerical error, it cannot form the basis of an adverse credibility finding. In addition, we will not uphold an adverse credibility finding unless the IJ or BIA specifically explains the significance of the discrepancy or points to the petitioner’s obvious evasiveness when asked about it. If discrepancies “cannot be viewed as attempts by the applicant to enhance his claims of persecution, [they] have no bearing on credibility.” Id.; see also Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988) (“Minor inconsistencies in the record such as discrepancies in dates which reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding.”) (citation omitted). In Vilorio-Lopez, we reversed the BIA’s adverse credibility finding where it rested on several inconsistencies because “[w]ithout more specific direction and in the absence of obvious evasiveness, we are unable to say the IJ’s adverse credibility finding is supported by substantial evidence.” Vilorio-Lopez, 852 F.2d at 1142. Similarly, in Damaize-Job, 787 F.2d at 1337, we reversed an adverse credibility finding that rested on an inconsistency between the petitioner’s application and his testimony relating to his children’s birthdates because, “[t]he IJ nowhere explained how these inaccuracies reflected on the credibility of his persecution claims or for what possible reason Damaize would intentionally have provided incorrect information on such trivial points.” We conclude that the discrepancy in Mr. Shah’s death certificate is not a proper basis for an adverse, credibility finding in this case. When the IJ asked Mrs. Shah about the two dates, she responded simply that she did not know why the stamp listed an earlier date than the date of her husband’s death. Given that Mrs. Shah was not obviously evasive when she was asked to explain the discrepancy, we will not uphold an adverse credibility finding that rests on this basis “without ‘specific direction’ to any evasiveness in the record.” Vilorio-Lopez, 852 F.2d at" }, { "docid": "22322429", "title": "", "text": "inconsistencies in the petitioner’s testimony “that were possibly the result of mistranslation or miscommunication, and are not material to [the petitioner’s] fear for his safety,” are not an adequate basis for an adverse credibility finding. Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988) (characterizing inconsistencies such as the year of death squad incident, length of time men were sheltered from death squad, and whether payment was made for accommodation as minor and immaterial to petitioner’s fear of safety); see also Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir.1986) (characterizing petitioner’s inconsistencies with respect to certain dates and the number of his children as “trivial errors” and insufficient to support an adverse credibility finding). Mejia-Paiz offered credible and unrefuted testimony that he is a Jehovah’s Witness. When asked by the INS attorney when he specifically became a Jehovah’s Witness, Mejia-Paiz answered he became a Jehovah’s Witness when he met one at the bank where he was working. Mejia-Paiz even offered to supply the name of his co-worker. Because his testimony was detailed, credible, and un-refuted, he was not required to submit corroborating evidence from a local church. The requirement of corroboration was thus an illegitimate basis for the IJ’s adverse credibility determination. See Hartooni, 21 F.3d at 342. Second, Mejia-Paiz’s Roman Catholic brother’s failure'to explain how he would have any knowledge of Mejia-Paiz’s religious membership is not a cogent reason for disbelieving Mejia-Paiz’s asserted beliefs and his brother’s affidavit. Siblings tend to know each other’s beliefs and customs. The fact that the brother is Roman Catholic does not make him less able to know that Mejia-Paiz is a Jehovah’s Witness. The brother’s failure to specify the source of his knowledge, either in his affidavit or in oral testimony, does not support the IJ’s adverse credibility finding. See id.; see also Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir.1996) (rejecting adverse credibility finding where IJ found petitioner’s credibility was weakened by his failure to support his testimony with corroborating evidence from his family). Finally, the IJ’s personal belief that Jehovah’s Witnesses do not swear under oath was an improper" } ]

[ { "docid": "22702913", "title": "", "text": "such purposes, she was not entirely forbidden to legislate in relation to articles introduced from foreign countries or from other States; that she might tax them the same as other property, and might regulate the sale to some extent; that a State might pass health and police laws, which would, to a certain extent, affect foreign- commerce and 'commerce between the States; and that this statute was a regulation of that character, and constitutional.” After a verdict of guilty, exceptions to this instruction were overruled by the highest court of. the State. 5 How. 554-557 ; 13 N. H. 536. In that case, as in the case at bar, the statute of the State prohibited sales of intoxicating liquors by any person without a license from municipal 'authorities, and authorized licenses to be granted only to persons residing within the State ; and the liquors were sold within the State by the importer, and in the' same barrel, keg or case, unbroken and in the same condition, in which he had brought them from another State. Yet the judgment of the highest court of New Hampshire was unanimously affirmed by this court. Chief Justice . Taney, Mr. Justice Catron and Mr. Justice Nelson were of opinion that, the statute of New Hampshire was a regulation of'interstate commerce; but yet valid so long as it was not in conflict with any act of Congress. Chief Justice Taney, after1 recognizing that “ spirits and distilled liquors are universally^ admitted to be subjects of ownership and property, and are therefore subjects of exchange, barter and traffic, like any,other commodity in which, a right of property exists; and Congress, under its general power to regulate commerce with foreign nations, may prescribe what article of merchandise shall be admitted and what excluded, and may therefore admit, or not, as it shall deem best, the importation of ardent spirits; and inasmuch as the, laws of Congress authorize their importation, no State has a right to prohibit their introduction; ” and yet upholding the validity of the statutes of Massachusetts and Rhode Island, as not interfering with" } ]

[ { "docid": "22594008", "title": "", "text": "camp services to nonresidents, the statute would almost certainly be invalid. We have “consistently .. . held that the Commerce Clause .. . precludes a state from mandating that its residents be given a preferred right of access, over out-of-state consumers, to natural resources located within its borders or to the products derived therefrom.” New England Power Co. v. New Hampshire, 455 U. S. 331, 338 (1982). Our authorities on this point date to the early part of the century. Petitioner’s “product” is in part the natural beauty of Maine itself and, in addition, the special services that the camp provides. In this way, the Maine statute is like a law that burdens out-of-state access to domestically generated hydroelectric power, New England Power, or to local landfills, Philadelphia v. New Jersey, 437 U. S. 617 (1978). In those cases, as in this case, the burden fell on out-of-state access both to a natural resource and to related services provided by state residents. Avoiding this sort of “economic Balkanization,” Hughes v. Oklahoma, 441 U. S., at 325, and the retaliatory acts of other States that may follow, is one of the central purposes of our negative Commerce Clause jurisprudence. See ibid.; West v. Kansas Natural Gas Co., 221 U. S. 229, 255 (1911) (expressing concern that “embargo may be retaliated by embargo, and commerce will be halted at state lines”). And, as we noted in Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573, 580 (1986): “Economic protectionism is not limited to attempts to convey advan tages on local merchants; it may include attempts to give local consumers an advantage over consumers in other States.” By encouraging economic isolationism, prohibitions on out-of-state access to in-state resources serve the very evil that the dormant Commerce Clause was designed to prevent. Of course, this case does not involve a total prohibition. Rather, the statute provides a strong incentive for affected entities not to do business with nonresidents if they are able to so avoid the discriminatory tax. In this way, the statute is similar to the North Carolina “intangibles" }, { "docid": "4279699", "title": "", "text": "Power Co. v. New Hampshire, 455 U.S. 331, 334-36, 102 S.Ct. 1096, 1098-99, 71 L.Ed.2d 188 (1982), the Supreme Court reviewed an order of the New Hampshire Public Utility Commission that required the New England Power Company, a consortium of Connecticut River hydroelectric power companies, to reserve for New Hampshire residents an amount of power equal to the amount generated by the consortium within that state. ' The Court found that the Commission’s order was essentially an “exportation ban” that placed a direct and substantial burden on interstate commerce and therefore applied the heightened scruti ny test to the discriininatory order. Id. at 339, 102 S.Ct. at 1100-01. Subsequently, in Arkansas Electric Cooperative Corp. v. Arkansas Public Service Commission, 461 U.S. 375, 103 S.Ct. 1905, 76 L.Ed.2d 1 (1983), in rejecting an outdated Commerce Clause utility test that focused on whether the state was regulating wholesale or retail sales of gas or electricity, the Supreme Court noted: “Our constitutional review of state utility regulation in related contexts has not treated it as a special province insulated from our general Commerce Clause jurisprudence.” Id. at 391, 102 S.Ct. at 1916 (citing New England Power Co., 455 U.S. 331, 102 S.Ct. 1096, 71 L.Ed.2d 188 (1982)). The Court then articulated the Pike balancing test as “[o]ne recent reformulation of the [Court’s dormant Commerce Clause] test” and, after noting that the regulation at issue did not implicate economic protectionism and would involve only an incidental effect on interstate commerce, applied the balancing test to conclude that the regulation did not violate the Commerce Clause. Id. at 393-95, 102 S.Ct. at 1917-18. Although the Arkansas Electric Court did not expressly characterize the regulation before it as nondiscriminatory, the Court’s opinion can only be read as implicitly rejecting application of the heightened scrutiny test because it found no discrimination against interstate commerce. More recently, the Supreme Court applied the heightened scrutiny test to protectionist state public utility regulation in Wyoming v. Oklahoma, 502 U.S. 437, 112 S.Ct. 789, 117 L.Ed.2d 1 (1992). The state statute there under attack required that all coal-fired electricity plants located" }, { "docid": "21081924", "title": "", "text": "Oklahoma, 441 U.S. 322, 326, 99 S.Ct. 1727, 1731, 60 L.Ed.2d 250 (1979). Accordingly, the Court has treated at least some core area of interstate commercial regulation not as a palimpsest, but rather as a tabula that must remain rasa until Congress decides to legislate. Whether or not the Founders intended this “negative” or “dormant” component to the Commerce Clause has been hotly debated. In any event, federal courts have for more than 150 years invoked the Commerce Clause to scrutinize state regulations affecting interstate commerce, even in the absence of conflicting congressional legislation. See generally Southern Pac. Co. v. Arizona) 325 U.S. 761, 769, 65 S.Ct. 1515, 1520, 89 L.Ed. 1915 (1945); Case of the State Freight Tax, 82 U.S. (15 Wall.) 232, 272, 21 L.Ed. 146 (1872) (“[T]he domain of the [federal government] should be preserved free from invasion, and ... no State legislation should be sustained which ... assumes to regulate, or control subjects committed by th[e] Constitution exclusively to the regulation of Congress.”); Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 319, 13 L.Ed. 996 (1851) (“Whatever subjects of this [commerce] power are in their nature national, or admit only of one uniform system, or plan or regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress.”); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 199-200, 6 L.Ed. 23 (1824) (Marshall, C.J.) (implying that a state oversteps its powers when it regulates interstate commerce because “it is exercising the very power that is granted to congress, and is doing the very thing which congress is authorized to do”). In applying the dormant Commerce Clause, the courts have identified guiding principles — limiting “protectionist” state legislation and fostering the development of a unified ' national market — that presumably motivated the Founders to endow Congress with the affirmative power to regulate commerce. As Justice Jackson wrote: Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market" }, { "docid": "16751499", "title": "", "text": "Indianapolis airport — be “available for public use on fair and reasonable terms and without unjust discrimination____” It is unclear whether this act was intended to be enforceable by airport users, such as the appellee airlines; but it will not be necessary in this case to resolve this question, or determine whether the challenged user fees are unreasonable under this act. Besides the Federal Anti-Head-Tax Act and important to understanding it, the appellees invoke the commerce clause of the Constitution (Art. I, § 8, cl. 3), which has been interpreted to forbid the states to discriminate against interstate commerce. See, e.g., Southern Pac. Co. v. Arizona, 325 U.S. 761, 767-68, 65 S.Ct. 1515, 1519, 89 L.Ed. 1915 (1945), and for this circuit’s most recent application of the clause W.C.M. Window Co. v. Bernardi, 730 F.2d 486, 493-96 (7th Cir.1984). Although the clause as written is a grant of authority to Congress to regulate interstate (and foreign) commerce rather than an independent limitation on state power, the Supreme Court, building on a dictum by John Marshall in Gibbons v. Ogden, 22 U.S. (9 Wheat.), 1, 197-209, 6 L.Ed. 23 (1824), early on interpreted the clause as prohibiting of its own force, without need for congressional action, state action that discriminates against interstate commerce. See, e.g., Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 319, 13 L.Ed. 996 (1851). Although controversial, see, e.g., Kitch, Regulation and the American Common Market, in Regulation, Federalism, and Interstate Commerce 7, 20-22 (Tarlock ed. 1981), this interpretation of the commerce clause can be defended on the practical ground that Congress is too busy — and maybe as James Madison feared too factionalized — to police every infringement of the policy (implied by a number of separate provisions of the Constitution) that the United States be a single “common market” for goods and services. See Eule, Laying the Dormant Commerce Clause to Rest, 91 Yale L.J. 425, 431-32 (1982). But this ground fails when Congress has exercised its regulatory power. “Once Congress acts, courts are not free to review state taxes or other regulations under" }, { "docid": "17712470", "title": "", "text": "See New England Power Co. v. New Hampshire, 455 U.S. 331, 344 n. 10, 102 S.Ct. 1096, 1103 n. 10, 71 L.Ed.2d 188 (1982) (deferring resolution of preemption issues in favor of commerce grounds). III. The commerce clause grants Congress the power to regulate commerce among the states. U.S. Const., art. I, § 8, cl. 3. It has long been recognized as implying limits on the powers of the states to erect barriers against interstate trade. South-Central Timber Development v. Wunnicke, 467 U.S. 82, 104 S.Ct. 2237, 2240, 81 L.Ed.2d 71 (1984); see Cooley v. Board of Wardens 53 U.S. (12 How.) 299, 317-18, 13 L.Ed. 996 (1852). Absent conflicting federal legislation, the states may exercise police power over matters of legitimate local concern even though such regulation may affect interstate commerce. Philadelphia v. New Jersey, 437 U.S. 617, 623-24, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978); Raymond Motor Transportation v. Rice, 434 U.S. 429, 440, 98 S.Ct. 787, 793, 54 L.Ed.2d 664 (1978). Incidental burdens on interstate commerce may be unavoidable when a state legislates to protect its citizens. Philadelphia v. New Jersey, 437 U.S. at 623-24, 98 S.Ct. at 2535. Nevertheless, the safeguarding of local interests must ultimately yield to the principle that “one state in its dealings may not place itself in a position of economic isolation.” Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 527, 55 S.Ct. 497, 502, 79 L.Ed. 1032 (1935). “[T]he regulation of utilities is one of the most important of the functions traditionally associated with the police power of the states.” Arkansas Electric Cooperative Corp. v. Arkansas Public Service Commission, 461 U.S. 375, 377, 103 S.Ct. 1905, 1908, 76 L.Ed.2d 1 (1983). “Need for new power facilities, their economic feasibility, and rates and services, are areas that have been characteristically governed by the States.” Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190, 205, 103 S.Ct. 1713, 1723, 75 L.Ed.2d 752 (1983); see also Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 569, 100 S.Ct. 2343, 2353, 65 L.Ed.2d" }, { "docid": "23654985", "title": "", "text": "bore upon the case; any act in execution of the power to regulate commerce, the object of which was to control state legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern states; we should feel not much difficulty in saying, that a state law coming to conflict with such act would be void. . . ” Willson v. Black-Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245, 7 L.Ed. 412 (1829). Since 1829 the verbal formulation has changed from time to time. See Cooley v. Board of Wardens of the Port of Philadelphia, 53 U.S. (12 How.) 299, 13 L.Ed. 996 (1852). Today, the word preemption is used sometimes without reference to the commerce clause source of the power to preempt. Note, the Preemption Doctrine: Shifting Perspectives on Federalism and the Burger Court, 75 Colum.L.Rev. 623 (1975). Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). See e. g., Campbell v. Hussey, 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d 299 (1961); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947); Kelly v. Washington ex rel. Foss Co., 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3 (1937); cf. Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640 (1956). The split decision in Burbank v. Lockheed Air Terminal Inc., supra, demonstrates that the Court’s willingness to find a sufficiently express intention to exclude state choice of law in a given congressional enactment, is a close issue. But, Marshall’s underlying constant is hot disputed. When Congress has regulated commerce its word is law and its law is supreme. . In Justice Curtis’ words: “Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress. Cooley v. Board of Wardens of the Port of Philadelphia, 53 U.S. (12 How.) 299, 319, 13 L.Ed. 996" }, { "docid": "22594129", "title": "", "text": "in the Supreme Court: The First Hundred Years 1789-1888, p. 234 (1985) (describing the negative Commerce Clause as “arbitrary, conelusory, and irreconcilable with the constitutional text”); see also, e. g., L. Tribe, American Constitu tional Law 439 (2d ed. 1988) (“The Supreme Court’s approach to commerce clause issues ... often appears to turn more on ad hoc reactions to particular eases than on any consistent application of coherent principles”); Redish & Nugent, “The Dormant Commerce Clause and the Constitutional Balance of Federalism,” 1987 Duke L. J. 569, 573 (“[N]ot only is there no textual basis [for it], the dormant Commerce Clause actually contradicts, and therefore directly undermines, the Constitution’s carefully established textual structure for allocating power between federal and state sovereigns”); B. Gavit, The Commerce Clause of the United States Constitution 22 (1932) (noting that the Court has set “no conscious standard” but has rather, “in an imperial way,” decided whether each particular state action presented to it “was or was not an invalid regulation of interstate commerce”). See also Mayor of New York v. Miln, 11 Pet. 102, 157-159 (1837) (Story, J., dissenting); Groves v. Slaughter, 15 Pet. 449, 504, 506-508 (1841) (McLean, J., concurring); Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc.for Relief of Distressed Pilots, 12 How. 299 (1852) (adopting a partial-exclusivity rationale for dormant Commerce Clause cases). See also F. Frankfurter, The Commerce Clause Under Marshall; Taney and Waite 13 (1937) (“The conception that the mere grant of the commerce power to Congress dislodged state power finds no expression” in the records of the Philadelphia Convention nor the discussions preceding ratification); id., at 17-19 (noting that Chief Justice Marshall’s discussion of the “exclusiveness” doctrine in Gibbons v. Ogden, 9 Wheat. 1, 197-209 (1824), “was logically irrelevant to [his] holding,” and adding: “It was an audacious doctrine, which, one may be sure, would hardly have been publicly avowed in support of the adoption of the Constitution. Indeed, The Federalist in effect denied it, by assuring that only express prohibitions in the Constitution limited the taxing power of the states” (citing The Federalist No." }, { "docid": "10003570", "title": "", "text": "Motion for Injunc-tive Relief, December 29,1987 at 6-9. Our primary consideration on appeal is whether there was an abuse of discretion by the district court concerning Hyde Park’s likelihood of success on the merits. III. Likelihood of Success on the Merits High Voltage and the state argue that section 3 is valid under the Commerce Clause and, further, that it is not preempted by the Williams Act. We will address each argument in turn. A. Commerce Clause Analysis Article I, section 8 of the Constitution gives Congress “Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” If a state regulates interstate commerce in a manner inconsistent with that prescribed by Congress, the state regulation is preempted by the federal law, and is therefore constitutionally impermissible. Where Congress has not acted directly, nothing in the Commerce Clause explicitly prohibits the states from regulating interstate commerce. Nevertheless, the Supreme Court has established a doctrine, sometimes denominated the “dormant Commerce Clause,” under which the states are barred from regulating interstate commerce in a manner which significantly interferes with the national economy. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824); Cooley v. Board of Wardens of the Port of Philadelphia, 53 U.S. (12 How.) 299, 13 L.Ed. 996 (1851); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1935); Dean Milk Co. v. City of Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951). Perhaps the most eloquent and comprehensive analysis of dormant Commerce Clause doctrine was provided by Justice Jackson in H.P. Hood & Sons v. DuMond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949). In that opinion, he wrote for a majority of the Court: While the Constitution vests in Congress the power to regulate commerce among the states, it does not say what the states may or may not do in the absence of congressional action, nor how to draw the line between what is and what is not commerce among the states. Perhaps even more than by" }, { "docid": "293940", "title": "", "text": "the state, and in this case, that is not enough. For whatever reason, the General Assembly of Indiana has chosen to discriminate as between in state (Indiana) and out of state purveyors of alcoholic beverages. The Deputy Attorney General arguing this case seemed to place most of his eggs in the “permit” basket saying that in order to engage in this kind of distribution, one must have an Indiana permit. The flaw in this argument is that permits simply are not granted to out of state distributors and at that point, there is an interference with interstate commerce that cannot be gainsaid under the Commerce Clause. This court is now, and has always been, greatly reluctant to wield the Federal Constitution ax against State legislation. See dissent of first Justice Harlan in Civil Rights Cases, In re, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). But here, that result is inescapable because these statutes on their face discriminate against out of state commerce. This clearly violates the Commerce Clause of the Federal Constitution. The actions of the General Assembly of Indiana, here go well beyond the simple kind of police power regulation authorized by the Taney court in Mayor, Aldermen and Commonalty of City of New York v. Miln, 36 U.S. 102 (11 Pet.), 9 L.Ed. 648 (1837). Likewise, this state regulation is also different than the one approved by Justice Curtis in Cooley v. Board of Wardens of Port of Philadelphia, 53 U.S. 299 (12 How.), 13 L.Ed. 996 (1851). Although not particularly relevant to modern times, the early reasoning and result of Chief Justice Fuller in Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128 (1890), now that the nation has been through national prohibition and its repeal, may say more about the dimensions of the Commerce Clause and the dispensing of intoxicating liquors than once was imagined. In purely modern conceptual terms the state here is clearly acting as a market regulator and not as a market distributor. In New England Power Co. v. New Hampshire, 455 U.S. 331, 102 S.Ct. 1096," }, { "docid": "2342772", "title": "", "text": "limits do not apply here. 447 U.S. at 443-44, 100 S.Ct. at 2281 (emphasis added; citations and footnotes omitted). Similarly, in Sporhase v. Nebraska, 458 U.S. 941, 102 S.Ct. 3456, 73 L.Ed.2d 1254 (1982), a case which upheld against a commerce clause challenge much of Nebraska’s scheme to control the sale of groundwater, the Court, citing Reeves, stated that “given [Nebraska’s water] conservation efforts, the continuing availability of ground water in Nebraska is not simply happenstance; the natural resource has some indicia of a good publicly produced and owned in which a State may favor its own citizens in times of shortage.” 458 U.S. at 957, 102 S.Ct. at 3464-65 (emphasis added). And in Wunnicke, the Alaska downstream timber regulation case, the Court noted in passing that an “element[ ] ... not present in Reeves ” but present in the Alaska case was the “involve[ment]” of a “natural resource.” 467 U.S. at 96, 104 S.Ct. at 2245. Cf. New England Power Co. v. New Hampshire, 455 U.S. 331, 338 n. 6, 102 S.Ct. 1096, 1100 n. 6, 71 L.Ed.2d 188 (1982) (characterizing Reeves as establishing that “a state may confine to its residents the sale of products it produces ” and refusing to characterize as market participation New Hampshire’s efforts to limit out-of-state sale of hydroelectric power generated by a privately owned power company from a river assert-edly owned by the state). Interpreting the Supreme Court’s passing remarks as to the possible inapplicability of the market participant doctrine in a natural resource case is no easy task. The purported basis of the market participant doctrine is that “ ‘[n]othing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others.’ ” White, 460 U.S. at 207, 103 S.Ct. at 1044 (quoting Alexandria Scrap, 426 U.S. at 810, 96 S.Ct. at 2498 (footnotes omitted)). The Court in Reeves also quoted this sentence, emphasizing its “unmistakably broad terms.” 447 U.S. at 436, 100 S.Ct. at 2277. Hence, despite the Supreme Court’s" }, { "docid": "17712469", "title": "", "text": "the 36% allocation recently approved by FERC in regulating the wholesale aspects of the Grand Gulf project. Thus, a strong argument can be made that the APSC’s powers have been preempted by the Federal Power Act. The appellants, on the other hand, urge that we examine the APSC’s powers in light of other federal legislation, the Public Utility Holding Company Act of 1935. This law, they argue, expressly reserves to the states some jurisdiction to regulate the securities dealings of utility holding companies and their subsidiaries. See 15 U.S.C. §§ 79f(b), 79g(g), 79u (1982); infra at 414-15; supra notes 3 & 5. The district court’s order did not squarely deal with the argument now made by appellants. We are not convinced that the district court improperly based its decision on preemption grounds. Nevertheless, we choose not to address the difficult question of whether the authority denied the states under the Federal Power Act may be granted to them by the Holding Company Act, because the ease can be disposed of under well-settled commerce clause principles. See New England Power Co. v. New Hampshire, 455 U.S. 331, 344 n. 10, 102 S.Ct. 1096, 1103 n. 10, 71 L.Ed.2d 188 (1982) (deferring resolution of preemption issues in favor of commerce grounds). III. The commerce clause grants Congress the power to regulate commerce among the states. U.S. Const., art. I, § 8, cl. 3. It has long been recognized as implying limits on the powers of the states to erect barriers against interstate trade. South-Central Timber Development v. Wunnicke, 467 U.S. 82, 104 S.Ct. 2237, 2240, 81 L.Ed.2d 71 (1984); see Cooley v. Board of Wardens 53 U.S. (12 How.) 299, 317-18, 13 L.Ed. 996 (1852). Absent conflicting federal legislation, the states may exercise police power over matters of legitimate local concern even though such regulation may affect interstate commerce. Philadelphia v. New Jersey, 437 U.S. 617, 623-24, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978); Raymond Motor Transportation v. Rice, 434 U.S. 429, 440, 98 S.Ct. 787, 793, 54 L.Ed.2d 664 (1978). Incidental burdens on interstate commerce may be unavoidable when a" }, { "docid": "17712484", "title": "", "text": "commerce clause transgression. This section provides: [N]or shall anything in this chapter affect the jurisdiction of any other commission, board, agency or officer of * * * any state or political subdivision of any State, over any person, security, or contract, insofar as such jurisdiction does not conflict with any provision of this chapter or any rule, regulation, or order thereunder. In Edgar v. Mite Corp., 457 U.S. 624, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982), the Supreme Court considered whether a state tender offer statute violated the commerce clause. The federal securities laws contained a provision nearly identical to section 79u. See 15 U.S.C. § 78bb(a) (1982). There was no suggestion made that this savings provision could authorize state violations of the commerce clause. Rather, Justice White interpreted the statute as leaving to the courts to decide whether similar state legislation may be preempted. 457 U.S. at 631, 102 S.Ct. at 2634. Although Justice White did not speak for the whole Court, Mite supports a conclusion that section 79u does not insulate the APSC’s actions from examination under the commerce clause. VI. We must next determine the appropriate level of scrutiny under the commerce clause. The Supreme Court has recently applied two tests to state restrictions on the flow of interstate power. In New England Power Co. v. New Hampshire, 455 U.S. 331, 102 S.Ct. 1096, 71 L.Ed.2d 188 (1982), the New Hampshire Public Utilities Commission sought to restrict the export of hydroelectric energy produced within the state. The Commission’s purpose was to contain the cost savings associated with this cheaper form of electrical generation to the citizens of New Hampshire. This savings was to be obtained at the expense of customers in neighboring states that had been sharing the power produced in New Hampshire. Id. at 335-36, 339,102 S.Ct. at 1098-99, 1100. The Supreme Court had no trouble concluding that this sort of “protectionist regulation” was forbidden by the commerce clause. Id. at 339, 102 S.Ct. at 1100. Two reasons were cited for reaching this result. First, the utilities commission had made clear that its order was “designed" }, { "docid": "2371575", "title": "", "text": "at 792 (citing City of Philadelphia, 437 U.S. at 629, 98 S.Ct. at 2538). The State's second concern was with preserving existing disposal capacity for waste generated within South Carolina. ETC, 901 F.Supp. at 1034. Natural resources, however, may not be hoarded under the Commerce Clause. \"[A] State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located within its borders.\" City of Philadelphia, 437 U.S. at 627, 98 S.Ct. at 2537; see also New England Power Co. v. New Hampshire, 455 U.S. 331, 338, 102 S.Ct. 1096, 1100, 71 L.Ed.2d 188 (1982). Thus, \"[t]he burden ... of conserving the State's remaining landfill space should not fall disproportionately on out-of-state interests.\" HWTC, 945 F.2d at 792 (citing City of Philadelphia, 437 U.S. at 628, 98 S.Ct. at 2537-38). The third concern the district court found was South Carolina's worries about \"transportation risks.\" ETC, 901 F.Supp. at 1034. Just as with the State's concern with health and safety, there is little to distinguish out-of-state waste from in-state waste in this regard. Furthermore, neutral alternatives exist for regulating transportation of all has-ardous waste regardless of origin. Chemical Waste Management, 504 U.S. at 345-46, 112 S.Ct. at 2015-16. Finally, there was South Carolina's concern that it is shouldering an unfair burden of the nation's hazardous wastes. ETC, 901 F.Supp. at 1034. The Commerce Clause does not purport to require fairness among the states in interstate commerce. The \"apparent Congressional intent of RCRA and SARA would seem\" to be \"that hazardous waste be treated and disposed of somewhere, even if spread disproportionately among the states.\" HTwC, 945 F.2d at 792. On appeal, South Carolina reframes its purposes as: (1) complying with the CAP by guaranteeing capacity; and (2) addressing “orphan” wastes — hazardous waste from a state which prohibits its disposal and has failed to enter into a CAP for its disposal. As previously explained, the CAP requirement does not require or contemplate that a state discriminate against out-of-state waste in order to comply. Nor does the Commerce Clause allow states to punish other" }, { "docid": "22412859", "title": "", "text": "this court, concerning the extent of the police power of each State over intoxicating liquors within its borders, were Thurlow v. Massachusetts, Fletcher v. Rhode Island and Peirce v. New Hampshire, decided in 1847, and reported under the name of The License cases, 5 How. 504. In Peirce v. New Hampshire, a statute of New Hampshire, prohibiting sales of intoxicating liquors by any person without a license from municipal authorities, and authorizing licenses to be granted only to persons residing within the State, was held bj all the justices to be constitutional and valid, as applied to a barrel of intoxicating liquors, brought into New Hampshire from another State, and sold in New Hampshire by the importer, in the samé barrel, unbroken and in the same condition in which it had been brought in — there having been no legislation of Congress upon the subject. That decision was afterwards repeatedly cited with approval. Gilman v. Philadelphia, 3 Wall. 713, 730; Beer Co. v. Massachusetts, 97 U. S. 25, 33; Mobile County v. Kimball, 102 U. S. 691, 701; Mugler v. Kansas, 123 U. S. 623, 657, 658. And in several cases the validity of statutes of a State, taxing.the sale of intjxicating liquors brought from another State, was treated as depending upon the question’ whether the statutes made any discrimination in favor of liquors manufactured within the State. Hinson v. Lott, 8 Wall. 148; Tiernan v. Rinker, 102 U. S. 123; Walling v. Michigan, 116 U. S. 446, 460. The question whether the power of Congress to regulate commerce with foreign nations and among the several States is exclusive, or only paramount, was a subject of much diversity of opinion from an early period until 1851, when this court, speaking by Mr. Justice Curtis, in Cooley v. Board of Wardens, 12 How. 299, laid down this principle: When the nature of the particular subject in question is such as to demand a single uniform rule, operating equally throughout the United States, the power of Congress is exclusive; but when the subject is of such a nature as to require different'" }, { "docid": "22594007", "title": "", "text": "than on one that limits its services primarily to residents. IV There is no question that were this statute targeted at profit-making entities, it would violate the dormant Commerce Clause. “State laws discriminating against interstate commerce on their face are Virtually per se invalid.’ ” Fulton Corp. v. Faulkner, 516 U. S. 325, 331 (1996) (quoting Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U. S. 93, 99 (1994)). It is not necessary to look beyond the text of this statute to determine that it discriminates against interstate commerce. The Maine law expressly distinguishes between entities that serve a principally interstate clientelé and those that primarily serve an intrastate market, singling out camps that serve mostly in-staters for beneficial tax treatment, and penalizing those camps that do a principally interstate business. As a practical matter, the statute encourages affected entities to limit their out-of-state clientele, and penalizes the principally nonresident customers of businesses catering to a primarily interstate market. If such a policy were implemented by a statutory prohibition against providing camp services to nonresidents, the statute would almost certainly be invalid. We have “consistently .. . held that the Commerce Clause .. . precludes a state from mandating that its residents be given a preferred right of access, over out-of-state consumers, to natural resources located within its borders or to the products derived therefrom.” New England Power Co. v. New Hampshire, 455 U. S. 331, 338 (1982). Our authorities on this point date to the early part of the century. Petitioner’s “product” is in part the natural beauty of Maine itself and, in addition, the special services that the camp provides. In this way, the Maine statute is like a law that burdens out-of-state access to domestically generated hydroelectric power, New England Power, or to local landfills, Philadelphia v. New Jersey, 437 U. S. 617 (1978). In those cases, as in this case, the burden fell on out-of-state access both to a natural resource and to related services provided by state residents. Avoiding this sort of “economic Balkanization,” Hughes v. Oklahoma, 441 U. S., at" }, { "docid": "22594130", "title": "", "text": "Miln, 11 Pet. 102, 157-159 (1837) (Story, J., dissenting); Groves v. Slaughter, 15 Pet. 449, 504, 506-508 (1841) (McLean, J., concurring); Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc.for Relief of Distressed Pilots, 12 How. 299 (1852) (adopting a partial-exclusivity rationale for dormant Commerce Clause cases). See also F. Frankfurter, The Commerce Clause Under Marshall; Taney and Waite 13 (1937) (“The conception that the mere grant of the commerce power to Congress dislodged state power finds no expression” in the records of the Philadelphia Convention nor the discussions preceding ratification); id., at 17-19 (noting that Chief Justice Marshall’s discussion of the “exclusiveness” doctrine in Gibbons v. Ogden, 9 Wheat. 1, 197-209 (1824), “was logically irrelevant to [his] holding,” and adding: “It was an audacious doctrine, which, one may be sure, would hardly have been publicly avowed in support of the adoption of the Constitution. Indeed, The Federalist in effect denied it, by assuring that only express prohibitions in the Constitution limited the taxing power of the states” (citing The Federalist No. 32)). The majority’s assertion that James Madison viewed what we have termed the “negative” aspect of the Commerce Clause as more significant than its positive aspects, see ante, at 571, n. 7, is based on a letter written by Madison more than 40 years after the Convention, see 3 The Records of the Federal Convention of 1787, p. 478 (M. Farrand ed. 1911) (hereinafter Farrand) (reprinting letter from James Madison to J. C. Cabell, Feb. 13, 1829). The majority’s interpretation of the letter is anachronistic. There is nothing in the letter to suggest that Madison had in mind the “negative” Commerce Clause we have created which supposedly operates of its own force to allow courts to invalidate state laws that affect commerce. Rather, Madison’s reference to the Clause as granting a “power” strongly suggests that he was merely asserting that the Convention designed the Clause more to enable “the General Government,” namely, Congress, to negate state laws impeding commerce “rather than as a power to be used for the positive purposes of the General Government.”" }, { "docid": "10003571", "title": "", "text": "interstate commerce in a manner which significantly interferes with the national economy. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824); Cooley v. Board of Wardens of the Port of Philadelphia, 53 U.S. (12 How.) 299, 13 L.Ed. 996 (1851); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1935); Dean Milk Co. v. City of Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951). Perhaps the most eloquent and comprehensive analysis of dormant Commerce Clause doctrine was provided by Justice Jackson in H.P. Hood & Sons v. DuMond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949). In that opinion, he wrote for a majority of the Court: While the Constitution vests in Congress the power to regulate commerce among the states, it does not say what the states may or may not do in the absence of congressional action, nor how to draw the line between what is and what is not commerce among the states. Perhaps even more than by interpretation of its written word, this Court has advanced the solidarity and prosperity of this Nation by the meaning it has given to these great silences in the Constitution. Id. at 534-35, 69 S.Ct. at 663-64. As Justice Cardozo noted, state action must not “neutralize the economic consequences of free trade among the states,” Baldwin, 294 U.S. at 526, 55 S.Ct. at 501, because the Constitution “was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” Id. at 523, 55 S.Ct. at 500. In light of these principles, the Court “consistently has rebuffed attempts of states to advance their own commercial interests by curtailing the movement of articles of commerce, ... while generally supporting their right to impose even burdensome regulations in the interest of local health and safety.” H.P. Hood & Sons, 336 U.S. at 535, 69 S.Ct. at 663. Just last year, in CTS Corp. v. Dynamics Corp. of America, —" }, { "docid": "293941", "title": "", "text": "The actions of the General Assembly of Indiana, here go well beyond the simple kind of police power regulation authorized by the Taney court in Mayor, Aldermen and Commonalty of City of New York v. Miln, 36 U.S. 102 (11 Pet.), 9 L.Ed. 648 (1837). Likewise, this state regulation is also different than the one approved by Justice Curtis in Cooley v. Board of Wardens of Port of Philadelphia, 53 U.S. 299 (12 How.), 13 L.Ed. 996 (1851). Although not particularly relevant to modern times, the early reasoning and result of Chief Justice Fuller in Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128 (1890), now that the nation has been through national prohibition and its repeal, may say more about the dimensions of the Commerce Clause and the dispensing of intoxicating liquors than once was imagined. In purely modern conceptual terms the state here is clearly acting as a market regulator and not as a market distributor. In New England Power Co. v. New Hampshire, 455 U.S. 331, 102 S.Ct. 1096, 71 L.Ed.2d 188 (1982), the court clearly reaffirmed the view that the Commerce Clause precludes a state giving residents a preferred right of access to its natural resources or products derived therefrom. While this case does not involve a natural resource, it is a case where the state has given preferred treatment to its residents over non-residents. For all of these reasons, this Court has no choice but to declare these Indiana statutes in conflict with the Commerce Clause in Article I of the Constitution. CONCLUSION Judgement shall accordingly enter for Plaintiffs and against Defendants. Each party will bear its own costs. IT IS SO ORDERED. . The text of the relevant statute provides as follows: (a) It is unlawful for a person in the business of selling alcoholic beverages in another state or country to ship or cause to be shipped an alcoholic beverage directly to an Indiana resident who does not hold a valid wholesaler permit under this title. This includes the ordering and selling of alcoholic beverages over a computer network (as" }, { "docid": "4059959", "title": "", "text": "industry, and serve merely to prevent the national regulation that ‘is not only appropriate but essential to the efficient use of radio facilities.’ Federal Radio Comm’n v. Nelson Bros. Co., 289 U.S. 266, 279 [53 S.Ct. 627, 77 L.Ed. 1166].” United States v. Southwestern Cable Co., supra. The pristine constitutional issue presented under the commerce clause of the Constitution is whether state regulation as a public utility of a business engaged in interstate commerce is forbidden by the commerce clause itself, regardless of action or inaction by the Congress in implementation of its powers. Plaintiffs argue that the State has no power to prohibit a person from engaging in interstate commerce and that a state statute, which requires a certificate of public convenience and necessity, must fall as an unconstitutional obstruction of commerce. Our review of the authorities does not support this conclusion. In Gibbons v. Ogden, 1824, 9 Wheat. 1, 6 L.Ed. 23, the Court held that New York legislation, which purported to exclude from the navigable waters of the State vessels licensed under an Act of Congress unless also licensed by state authority was void, but subsequent decisions pioneered by Cooley v. Board of Wardens, 1851, 12 How. 299, 13 L.Ed. 996, have clarified the broad language of Chief Justice Marshall in the Gibbons case, leading the Court in Olsen v. Smith, 1904, 195 U.S. 332, 341, 25 S.Ct. 52, 53, 49 L.Ed. 224, to state the following positive expression of the principle: “The first contention in effect is that the state was without power to legislate concerning pilotage, because any enactment on that subject is necessarily a regulation of commerce within the provision of the Constitution of the United States. The unsoundness of this contention is demonstrated by the previous decisions of this court, since it has long since been settled that even although state laws concerning pilotage are regulations of commerce, ‘they fall within that class of powers which may be exercised by the states until Congress has seen fit to act ‘upon the subject.’ Cooley v. Board of Wardens, 12 How. 299 [13 L.Ed. 996];" }, { "docid": "16751500", "title": "", "text": "in Gibbons v. Ogden, 22 U.S. (9 Wheat.), 1, 197-209, 6 L.Ed. 23 (1824), early on interpreted the clause as prohibiting of its own force, without need for congressional action, state action that discriminates against interstate commerce. See, e.g., Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 319, 13 L.Ed. 996 (1851). Although controversial, see, e.g., Kitch, Regulation and the American Common Market, in Regulation, Federalism, and Interstate Commerce 7, 20-22 (Tarlock ed. 1981), this interpretation of the commerce clause can be defended on the practical ground that Congress is too busy — and maybe as James Madison feared too factionalized — to police every infringement of the policy (implied by a number of separate provisions of the Constitution) that the United States be a single “common market” for goods and services. See Eule, Laying the Dormant Commerce Clause to Rest, 91 Yale L.J. 425, 431-32 (1982). But this ground fails when Congress has exercised its regulatory power. “Once Congress acts, courts are not free to review state taxes or other regulations under the dormant Commerce Clause. When Congress has struck the balance it deems appropriate, the courts are no longer needed to prevent States from burdening commerce, and it matters not that the courts would invalidate the state tax or regulation under the Commerce Clause in the absence of congressional action.” Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 154, 102 S.Ct. 894, 910, 71 L.Ed.2d 21 (1982). Congress has acted here, in the Anti-Head-Tax Act, by forbidding airport authorities to charge unreasonable rates, directly or indirectly, to interstate airlines. Therefore, when those rates are challenged, the only question is whether they are consistent with the congressional policy. We are asked by an amicus curiae to consider the bearing of the Convention on International Civil Aviation (“the Chicago Convention,” as it is known), 61 Stat. 1180. A treaty of the United States, see British Caledonian Airways Ltd. v. Bond, 665 F.2d 1153, 1159 n. 3 (D.C.Cir.1981), the Convention has the force of a federal statute. But it does not regulate airport fees. It establishes a Council with" } ]

[ { "docid": "23122027", "title": "", "text": "States v. Wood, 834 F.2d 1382, 1388-90 (8th Cir.1987). Quantity, which is not an element of the offense under section 841(b)(1)(A), is an issue for the sentencing judge. Id. Thus, for the purpose of establishing the mandatory minimum sentence and the base offense level under the Guidelines, the government bears the burden of proving drug quantity by a preponderance of the evidence. E.g., United States v. Prescott, 920 F.2d 139, 144 (2d Cir.1990); United States v. Goff, 907 F.2d 1441, 1444 (4th Cir.1990); United States v. Reid, 911 F.2d 1456, 1462 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991); see also United States v. Streeter, 907 F.2d 781, 792 (8th Cir.1990) (government must prove contested factual allegations in the PSR by a preponderance of the evidence). In order to determine the appropriate offense level, the district court must consider “all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2); see also United States v. Lawrence, 915 F.2d 402, 406 (8th Cir.1990) (same). Drug quantities not specified in the count of conviction may be considered by the sentencing court in determining the offense level if they are part of the same course of conduct or scheme as the count of conviction. U.S.S.G. § 2D1.1, comment, (n.12) (citing U.S.S.G. § 1B1.3(a)(2)); see also Lawrence, 915 F.2d at 406 (same); Streeter, 907 F.2d at 791 (same). When, as here, there is no drug seizure, it is difficult for courts to determine the amount of cocaine properly attributed to each defendant in the conspiracy. Walton, 908 F.2d at 1301. The Guidelines provide: Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance. In making this determination, the judge may consider, for example, the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved. U.S.S.G." } ]

[ { "docid": "13432349", "title": "", "text": "within the scope of the conspiracy. D. Harold McMillan McMillan was convicted of conspiracy to distribute and to possess with intent to distribute more than five kilograms of cocaine and cocaine base, and aiding and abetting the distribution of cocaine. He was sentenced to a term of 282 months. He challenges the attribution of five to fifteen kilograms of cocaine to him, as well as a 2 level increase under U.S.S.G. § 3B1.1(c) for his role in the conspiracy. We find the district court’s determination of the quantity of drugs attributable to McMillan not clearly erroneous. See Cassidy, 6 F.3d at 557. The quantity for which McMillan was substantively convicted of selling, coupled with the wiretap evidence introduced at trial, conclusively establishes McMillan’s involvement with the conspiracy. Although different interpretations of the monetary amounts handled by McMillan are possible based on this evidence, we cannot say that the district court’s finding that McMillan was responsible for transferring approximately $150,000 to Botiz is clearly erroneous. See U.S.S.G. § 2D1.1, comment, (n. 12) (noting various considerations in determining drug quantity). The government satisfied its “burden of proving drug quantity by a preponderance of the evidence,” and thus McMillan’s base offense level was properly assessed at 32. United States v. Simmons, 964 F.2d 763, 771 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992); see Maxwell, 25 F.3d at 1397. Section 3B1.1 of the sentencing guidelines provides upward adjustments to the offense level based upon the defendant’s aggravating role in the offense. It provides that: The district court determined “that [McMillan] was an organizer of criminal activity within the meaning of section 3B1.1(c),” Sentencing Mem. at 3, and enhanced his sentence by two levels. Because the overall conspiracy involved more than five participants, however, the district court was limited to assigning McMillan “a four-level enhancement under § 3B 1.1(a).” United States v. Kirkeby, 11 F.3d 777, 779 (8th Cir.1993). (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels. (b) If" }, { "docid": "9870477", "title": "", "text": "In assessing the challenge to the district court’s drug-type finding, we begin by briefly sketching the legal landscape of the cocaine base/crack distinction in the sentencing context, mindful that we have been over this ground many times in recent years. See, e.g., United States v. Charles, 213 F.3d 10, 24-25 (1st Cir.2000); United States v. Ferreras, 192 F.3d 5, 11 (1st Cir.1999); United States v. Martinez, 144 F.3d 189, 190 (1st Cir.1998); United States v. Robinson, 144 F.3d 104, 107-09 (1st Cir.1998). Both the statute and the Guidelines impose significantly greater penalties for distributing (or manufacturing, dispensing, or possessing with intent to manufacture, distribute, or dispense) a given quantity of “cocaine base” rather than an equivalent quantity of “cocaine” (i.e., cocaine hydrochloride or powder cocaine). See 21 U.S.C. § 841(b)(l)(A)(ii), (iii); U.S.S.G. § 2Dl.l(c). Neither the statute nor the drug-quantity table in the Guidelines that establishes the offense level uses the word “crack.” Section 841(b) does not define “cocaine base,” but we have held that the term, as used in the statute, includes all forms of cocaine base, including but not limited to crack. See United States v. Lopez-Gil, 965 F.2d 1124, 1134 (1st Cir.1992) (opinion on panel rehearing). As used in the Guidelines, however, “cocaine base” has, since a 1993 amendment, a narrower meaning: “ ‘Cocaine base,’ for the purposes of this guideline, means ‘crack.’ ‘Crack’ is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.” U.S.S.G. § 2D1.1 Note (D). For Guidelines purposes, then, forms of cocaine base other than crack are treated as cocaine. See U.S.S.G.App. C, Amend. 487 (1993). Richardson was sentenced under the Guideline provision for cocaine base; his sentence therefore depended on a finding that the substance attributed to him was crack. Taylor and Gaul received mandatory minimum sentences pursuant to 21 U.S.C. § 841(b)(l)(A)(iii); their sentences therefore depended on a finding that the substance attributed to them was cocaine base, but not on a finding that it was crack. Turning to practicalities, the government may show" }, { "docid": "23104124", "title": "", "text": "these issues in turn. 1. Drug quantity We will not set aside a district court’s determination of drug quantity attributable to the defendant for sentencing purposes unless the determination was clearly erroneous. United States v. Swanberg, 370 F.3d 622, 624-25 (6th Cir.2004). In this case, the determination of the quantity of drugs attributable to Vasquez turns upon the proper application of Sentencing Guidelines § 2D1.1 Application Note 12. Note 12 states in relevant part: If the offense involved both a substantive drug offense and an attempt or conspiracy, ... the total quantity involved shall be aggregated to determine the scale of the offense. In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of the controlled substance shall be used to determine the offense level unless the sale is completed and the amount delivered more accurately reflects the scale of the offense .... If, however, the defendant establishes that the defendant did not intend to provide or purchase, or was not reasonably capable of providing or purchasing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that the defendant did not intend to provide or purchase or was not reasonably capable of providing or purchasing. U.S.S.G. § 2D1.1, cmt. n. 12 (2001). We have previously held that “[t]he government must prove the amount to be attributed to a defendant by a preponderance of the evidence.” Swanberg, 370 F.3d at 625. Once the government has established the negotiated amount of cocaine to be transferred, “the defendant] ha[s] the burden of proving that [he was] not capable of producing that amount.” United States v. Vasquez, 352 F.3d 1067, 1071 (6th Cir.2003) (citation and internal quotation marks omitted). A district court’s finding is clearly erroneous where, although there is evidence to support it, we are “left with the definite and firm conviction that a mistake has been committed.” Id. at 1070. Based solely on the fact of conviction for the distribution of cocaine, Vasquez was exposed to a maximum sentence of 20 years" }, { "docid": "10565154", "title": "", "text": "1989, they seized a police scanner and two pagers. An Omaha police officer who trains recruits in the area of undercover narcotics investigations testified that such items are often used by those distributing controlled substances. IV. Sentencing Issues All of the defendants appeal their sentences, challenging the constitutionality of 21 U.S.C. § 841 and section 2D1.1 of the Sentencing Guidelines. Davis, Lewis, and Maxwell also argue that the district court erroneously calculated their base offense levels, and Majied, Davis, and Maxwell contend that the district court improperly enhanced their offense levels. The government cross appeals the district court’s downward departure from the applicable sentencing ranges. A. Constitutionality of 21 U.S.C. § 841 and U.S.S.G. § 2D1.1 All of the defendants argue that the district court erred in denying their constitutional challenge to 21 U.S.C. § 841 and U.S.S.G. § 2D1.1. We disagree. Relying on statistics that they presented at the sentencing hearing, the defendants contend that the challenged provisions, which provide for the 100:1 ratio between sentences for cocaine base and cocaine powder, have a disparate impact on African Americans. The defendants argue that we therefore should apply a strict scrutiny standard of review and find the provisions violative of the constitutional principle of equal protection. The defendants, however, recognize that we consistently have held that the challenged provisions do not deny equal protection of the law because there is no evidence that Congress or the Sentencing Commission had a racially discriminatory purpose when they enacted more severe sentences for cocaine base. See, e.g., United States v. Simms, 18 F.3d 588, 595 (8th Cir.1994); United States v. Womack, 985 F.2d 395, 400 (8th Cir.), cert. denied, - U.S. -, 114 S.Ct. 276, 126 L.Ed.2d 227 (1993); United States v. Lattimore, 974 F.2d 971, 975-76 (8th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993). Thus, the defendants argue that it is the continued enforcement rather than the enactment of the challenged provisions that is unconstitutional. In support of their argument, however, the defendants have, offered only statistical and anecdotal evidence concerning the racially disparate impact of" }, { "docid": "10565157", "title": "", "text": "to remain in effect to further a racially discriminatory purpose). B. Base Offense Level Under the Guidelines, a defendant’s base offense level for drug crimes is calculated according to the identity and quantity of controlled substance attributable to the defendant. See U.S.S.G. § 2D1.1. The government must establish by a preponderance of the evidence both the type and quantity of drug attributable to each defendant. United States v. Monroe, 978 F.2d 433, 435 (8th Cir.1992) (drug type); United States v. Simmons, 964 F.2d 763, 771 (8th Cir.) (drug quantity), cert. denied, - U.S. -, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992). We review the district court’s findings as to the quantity and identity of drugs attributable to a defendant for clear error, reversing only if we are left with a definite and firm conviction that a mistake has been made. United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir.1993). Claiming that the'district court erred in determining both the identity and quantity of the controlled substance for which they were responsible, Davis, Lewis, and Maxwell challenge the district court’s determination of their base offense levels. We first consider the district court’s determination that the substance for which the defendants were responsible was cocaine base rather than cocaine powder. The defendants argue that the cocaine was often in powder form when Maxwell and Majied distributed it and that they therefore should not be held accountable for cocaine base. While Maxwell and Majied sometimes distributed cocaine powder, they distributed it to other members of the conspiracy who then converted it into cocaine base. When Lewis, Calvert, Moore, and Davis sold cocaine in the vicinity of the housing project, it was in the form of cocaine base. Maxwell and Majied were aware that their eoeonspirators were converting the powder to cocaine base before distributing it. In fact, Majied provided his coconspirators with directions for converting powder cocaine to cocaine base. Accordingly, the district court did not clearly err in holding all of the conspirators accountable for cocaine base since that was the form in which the cocaine was finally distributed to persons outside" }, { "docid": "10565158", "title": "", "text": "challenge the district court’s determination of their base offense levels. We first consider the district court’s determination that the substance for which the defendants were responsible was cocaine base rather than cocaine powder. The defendants argue that the cocaine was often in powder form when Maxwell and Majied distributed it and that they therefore should not be held accountable for cocaine base. While Maxwell and Majied sometimes distributed cocaine powder, they distributed it to other members of the conspiracy who then converted it into cocaine base. When Lewis, Calvert, Moore, and Davis sold cocaine in the vicinity of the housing project, it was in the form of cocaine base. Maxwell and Majied were aware that their eoeonspirators were converting the powder to cocaine base before distributing it. In fact, Majied provided his coconspirators with directions for converting powder cocaine to cocaine base. Accordingly, the district court did not clearly err in holding all of the conspirators accountable for cocaine base since that was the form in which the cocaine was finally distributed to persons outside of the conspiracy. Having decided that the district court did not erroneously determine the identity of the controlled substance for which the defendants were responsible, we must next decide whether the court’s quantity determination was proper. In determining a defendant’s base offense level, the district court must consider all such acts and omissions “that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § lB1.3(a)(2). Because the government seized only a small amount of drugs, the district court approximated the quantity of drugs attributable to each defendant. Id. § 2D1.1, comment, (n. 12). In making such an approximation, factors that the court may consider include “the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved.” Id. The district court found that Davis was responsible for between 50 and 150 grams of cocaine base. In his brief Davis concedes that intercepted telephone conversations refer to at least" }, { "docid": "2770405", "title": "", "text": "(7th Cir.1995), we conclude that it was not plain error for the court to refuse to give the proposed instruction. C. Calculation of Quantity of Drugs Robinson also challenges the district court’s calculation of the quantity of cocaine base involved in the conspiracy. Robinson was indicted under 21 U.S.C. §§ 841(a) and 846 for conspiring to possess with intent to distribute cocaine base, i.e., crack cocaine. Thus his base offense level at sentencing was determined according to the Drug Quantity Table in § 2D1.1 of the Sentencing Guidelines. The district court found that Robinson’s drug trafficking activities involved between 150 and 500 grams of cocaine base, giving him a base offense level of 34 on his conspiracy conviction. U.S.S.G. § 2D1.1(c)(3). The sentencing court determines the quantities of drugs involved in an offense by a preponderance of evidence; and we review such findings only for clear error. United States v. Berchiolly, 67 F.3d 634, 639 (7th Cir.1995). Hence we will reverse the court’s calculation of the amount of drugs involved in an offense only if we are left with a “firm and definite conviction that a mistake has been made.” Id. (quoting United States v. Corral-Ibarra, 25 F.3d 430, 437 (7th Cir.1994)). By the time of the sentencing hearing, the district court had before it all the trial testimony, a presentence investigation report prepared by a probation officer, and a chart and report prepared by F.B.I. Special Agent Gregory Holston. Holston conducted interviews with seven persons and summarized these interviews in chart form, outlining the quantity of drugs that each witness attributed to Corey Robinson, Michael Scott, and Andre Monroe, respectively, based on his or her interactions with and observations of the men. The government submitted both Holston’s chart and his comprehensive summaries of the interviews to the district court at sentencing. At the sentencing hearing, Robinson’s counsel acknowledged that Holston’s report was “a culmination of previous information ... provided in discovery and does track the information listed in the presentence report.” Holston’s chart included the following information in regard to Corey Robinson: 1) 50 buys by Charlene Branch, usually" }, { "docid": "22090990", "title": "", "text": "drug convictions in 1986 and 1989 were constitutionally invalid, we conclude the district court did not err in using them to enhance his sentence under § 851. E. SENTENCING GUIDELINES Defendant argues that in applying the Sentencing Guidelines, the district court erred in two ways. First, De fendant contends that the district court erred in its conversion of cash to cocaine to determine Defendant’s sentencing level. Second, Defendant contends that the district court erred in enhancing his sentence by two levels for his role in the offense. We review de novo a district court’s application of the Sentencing Guidelines, see United States v. Kellams, 26 F.3d 646, 648 (6th Cir.1994), and review a district court’s findings of fact for purposes of sentencing under the Guidelines for clear error. See United States v. Williams, 962 F.2d 1218, 1227 (6th Cir.1992). A finding is clearly erroneous if, after studying the entire record, we are “left with the definite and firm conviction that a mistake has been committed.” United States v. Perez, 871 F.2d 45, 48 (6th Cir.1989). 1. Calculation of Drug Quantity The government bears the burden of proving, by a preponderance of the evidence, that the trial court should attribute a particular quantity of drugs to a defendant. See United States v. Sims, 975 F.2d 1225, 1242 (6th Cir.1992). Under the Sentencing Guidelines: [w]here there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance. In making this determination, the court may consider ... the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved. USSG § 2D1.1 comment, (n.12). The district court followed the Sentencing Guidelines and the recommendations set forth in Defendant’s presentence report, and converted the $671,300 seized from the safe and $2,528 seized from Defendant’s person to a drug quantity of 11.93 kilograms. The district court arrived at this figure because the evidence showed that Defendant sold one-sixteenth ounce quantities to Pearce for" }, { "docid": "22555764", "title": "", "text": "Cir.1998). “‘Factual findings regarding sentencing factors are entitled to considerable deference and will be reversed only if they are clearly erroneous.’ ” Id. at 831 (quoting United States v. Watson, 966 F.2d 161, 162 (5th Cir.1992)); see also United States v. Medina, 161 F.3d 867, 876 (5th Cir.1998) (“We review drug quantity determinations, as findings of fact, for clear error.”). “ ‘A factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole.’” Alford, 142 F.3d at 831 (quoting United States v. Sanders, 942 F.2d 894, 897 (5th Cir.1991)). (2) The District Court’s Application of U.S. Sentencing Guideline § 2D1.1 The district court accepted the PSR’s conclusion that 102 kilograms of cocaine were attributable to Betancourt in relation to the charged offenses. This amount was based on an estimation of the cocaine Be-tancourt supplied to Esparza for the period of time between May 2002 and Betanc-ourt’s arrest, multiplied by the number of people to whom Betancourt claimed he supplied cocaine. Betancourt urges that he should be liable only for that quantity of cocaine he supplied to Esparza and only for activity taking place from September 2002 through January 17, 2003. “[A] district court may consider ‘estimates of the quantity of drugs for sentencing purposes.’ ” Alford, 142 F.3d at 832 (quoting United States v. Sherrod, 964 F.2d 1501, 1508 (5th Cir.1992)). In United States v. Medina, this Court held that the amount of drugs attributable to a defendant for purposes of sentencing “need not be limited to the actual quantities seized; the district judge can make an estimate.” 161 F.3d at 876 (citing U.S. Sentencing Guidelines Manual § 2D1.1, cmt. n. 12) (stating that “types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level” and that “[wjhere there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance”). In Medina, this Court inferred the amount of drugs for which the defendant was responsible based on" }, { "docid": "23469573", "title": "", "text": "we find that it was properly included in calculating his base offense level. IX. Classification of the Drugs The defendant also claims that the district court erred in finding that the substances attributed to McIntyre were cocaine base rather than cocaine hydrochloride (HCI2). Under the sentencing guidelines, possession and distribution of cocaine base or “crack” is more severely punished, and McIntyre argues that the district court erred in not presuming that all cocaine that was not tested by a chemist was cocaine hydrochloride (powder) for purposes of sentencing. See U.S.S.G. § 2D1.1; see also 21 U.S.C. § 841(b)(l)(A)(iii). We disagree. The calculation of quantities of drugs for purposes of sentencing is reviewed for clear error. United States v. Slater, 971 F.2d 626, 638 (10th Cir.1992). The record supports the finding that the drugs possessed by McIntyre were in the form of cocaine base. In his testimony, Darren Hogg consisténtly refers to the substances possessed by McIntyre as crack cocaine. This court has held that mere testimony concerning the substance is sufficient to support a finding that it is crack rather than cocaine hydrochloride. See, e.g., United States v. LeRoy, 944 F.2d 787, 790 (10th Cir.1991); United States v. Anthony, 944 F.2d 780, 782 (10th Cir.1991). That Darren Hogg also referred to powder cocaine in his testimony does not persuade us otherwise; in those instances, he was referring to McIntyre transporting cocaine powder from California and cooking the powder into crack. X. Void for Vagueness The defendant next challenges the application of 21 U.S.C. § 841 and U.S.S.G. § 2D1.1 as void for vagueness. He asserts that the use of the term “cocaine base” is unconstitutionally vague and deprives him of his Fifth Amendment right to due process. This court has squarely addressed the constitutionality of the use of the term “cocaine base” and found it to be sound. United States v. Turner, 928 F.2d 956, 959-60 (10th Cir.), cert. denied, - U.S. -, 112 S.Ct. 230, 116 L.Ed.2d 187 (1991). The defendant would have us distinguish Turner on the ground that in that case the party did not contend that" }, { "docid": "10565156", "title": "", "text": "the 100:1 ratio. As we stated in Lattimore, such “numbers do not indicate a violation of equal protection in the federal constitutional sense.” 974 F.2d at 975. “[E]ven if a neutral law has a disproportionately adverse impact upon a racial minority, it is unconstitutional ... only if that impact can be traced to a discriminatory purpose.” Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979). The defendants presented no evidence that Congress or the Sentencing Commission has permitted the challenged provisions to remain in effect “at least in part because of, not merely in spite of, [their] adverse effects upon” a racial minority. United States v. Johnson, 12 F.3d 760, 763-64 (8th Cir.1993) (internal quotations omitted). Accordingly, we reject the defendants’ equal protection challenge to the disparity in the Guidelines between cocaine base and cocaine powder. See United States v. Willis, 967 F.2d 1220, 1225 (8th Cir.1992) (rejecting equal protection challenge to more severe cocaine base penalties because there is no evidence that Congress permitted them to remain in effect to further a racially discriminatory purpose). B. Base Offense Level Under the Guidelines, a defendant’s base offense level for drug crimes is calculated according to the identity and quantity of controlled substance attributable to the defendant. See U.S.S.G. § 2D1.1. The government must establish by a preponderance of the evidence both the type and quantity of drug attributable to each defendant. United States v. Monroe, 978 F.2d 433, 435 (8th Cir.1992) (drug type); United States v. Simmons, 964 F.2d 763, 771 (8th Cir.) (drug quantity), cert. denied, - U.S. -, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992). We review the district court’s findings as to the quantity and identity of drugs attributable to a defendant for clear error, reversing only if we are left with a definite and firm conviction that a mistake has been made. United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir.1993). Claiming that the'district court erred in determining both the identity and quantity of the controlled substance for which they were responsible, Davis, Lewis, and Maxwell" }, { "docid": "23367738", "title": "", "text": "25 F.3d at 1397. We review the district court’s determination of the quantity of drugs for clear error, and will reverse only if we are left with a firm and definite conviction that a mistake has been made. United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir.1993). A sentencing court may consider any evidence as long as it has sufficient indicia of reliability to support its probable accuracy. Id.; United States v. Sales, 25 F.3d 709, 711 (8th Cir.1994). Recently, in United States v. Maxwell, this court held that the district court did not clearly err in calculating the quantity of drugs as cocaine base rather than powder cocaine because “that was the form in which the cocaine was finally distributed to persons outside of the conspiracy.” 25 F.3d at 1397. Similarly, there was ample evidence that the eoconspirators in this case, including MeMurray, distributed cocaine base rather than powder cocaine. For example, authorities seized drug paraphernalia used to convert powder cocaine to cocaine base, and several witnesses testified about the coconspirators’ cocaine base sales. Accordingly, we conclude the district court did not clearly err in holding MeMurray accountable for cocaine base rather than powder cocaine. See United States v. Haynes, 881 F.2d 586, 592 (8th Cir.1989) (converting amount of powder cocaine into crack for purposes of sentencing because evidence showed defendant was “in the business of selling crack cocaine and not powder cocaine”). D. Tracy Lomax argues the court incorrectly calculated the amount of drugs attributable to him as 12.6 kilograms of crack cocaine, and erred in assessing his base offense level as 40. He contends the court clearly erred in accepting the calculations of the probation officer who drafted the presentence report, claiming the report was compiled and based on unreliable testimony. The district court did not clearly err in its drug quantity determination. We need not itemize each piece of evidence and testimony which supports the calculation in the presentence report. Numerous government witnesses, all of whom the district court found credible, testified about transactions involving large quantities of cocaine or cocaine base over a period" }, { "docid": "23469572", "title": "", "text": "829, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990). Estimates are an acceptable method of calculating drug quantities so long as the information supporting the estimate has a minimum indicia of reliability. Easterling, 921 F.2d at 1077. The defendant first .asserts that the trial court improperly relied on Darren Hogg’s testimony, which he alleges was untrustworthy because of internal inconsistencies. Again, this court will not reexamine the credibility of a witness’ testimony nor will we decide between competing interpretations of testimony. United States.v. Youngpeter, 986 F.2d 349, 353 (10th Cir.1993); Espinosa, 771 F.2d at 1391. Furthermore, the district court only attributed 15 kilos to McIntyre in calculating his base offense level, while both Darren Hogg’s testimony and the presentence report suggest that between 20 and 24 kilos were actually attributable to McIntyre. Second, the defendant argues that the cocaine found in the bed mattress at the Comfort Inn on February 28, 1990, was wrongly attributed to him. For the reasons that we find the evidence sufficient to support his conviction under Count 5, supra Section VI, we find that it was properly included in calculating his base offense level. IX. Classification of the Drugs The defendant also claims that the district court erred in finding that the substances attributed to McIntyre were cocaine base rather than cocaine hydrochloride (HCI2). Under the sentencing guidelines, possession and distribution of cocaine base or “crack” is more severely punished, and McIntyre argues that the district court erred in not presuming that all cocaine that was not tested by a chemist was cocaine hydrochloride (powder) for purposes of sentencing. See U.S.S.G. § 2D1.1; see also 21 U.S.C. § 841(b)(l)(A)(iii). We disagree. The calculation of quantities of drugs for purposes of sentencing is reviewed for clear error. United States v. Slater, 971 F.2d 626, 638 (10th Cir.1992). The record supports the finding that the drugs possessed by McIntyre were in the form of cocaine base. In his testimony, Darren Hogg consisténtly refers to the substances possessed by McIntyre as crack cocaine. This court has held that mere testimony concerning the substance is sufficient to support a finding" }, { "docid": "6713621", "title": "", "text": "the court sentenced Valenzuela to 360 months’ incarceration, 10 years’ supervised release, and a $12,000 fine. The focus of Valenzuela’s appeal is whether the district court erred in sentencing him based on its conclusion that he dealt crack cocaine and not powder cocaine or another form of cocaine base. Valenzuela does not challenge the amount of drugs attributed to him; he only questions the district court’s conclusion that he dealt crack cocaine. Because a district court’s determination of the type of drugs involved in an offense is a finding of fact, we review it for. clear error. See United States v. Jarrett, 133 F.3d 519, 529 (7th Cir.), cert. denied, — U.S.-, 118 S.Ct. 1688, — L.Ed.2d-(1998); United States v. Carter, 122 F.3d 469, 472 (7th Cir.1997); United States v. Otis, 107 F.3d 487, 490 (7th Cir.1997). Section 2D1.1(c) of the Sentencing Guidelines provides a drug quantity table for sentencing courts to use in determining a defendant’s base offense level for drug crimes. One well-established distinction in this table is between powder cocaine and crack cocaine. The Guidelines provide a “100:1 ratio” in calculating a defendant’s base offense level for crimes involving crack cocaine in relation to crimes involving powder cocaine. See U.S.S.G. 2D1.1(c). Crimes involving 1.5 kilograms or more of crack cocaine receive the same base offense level as crimes involving 150 kilograms or more of cocaine. See id.; United States v. Earnest, 129 F.3d 906, 915 (7th Cir.1997); United States v. Adams, 125 F.3d 586, 590 (7th Cir.1997). Until 1993, however, the sentencing scheme had not been clear with respect to the distinction between crack and cocaine base. Crack is a form of cocaine base. See United States v. Booker, 70 F.3d 488, 490-91 (7th Cir.1995) (detailing the scientific definitions of crack, powder cocaine, and cocaine base). The 1993 amendment to the Guidelines added a definition of cocaine base to clarify that the higher base offense levels listed in § 2D1.1 apply only to the crack form of cocaine base. See U.S.S.G. § 2D1.1(c) note (D); see also Earnest, 129 F.3d at 915; United States v. Abdul, 122" }, { "docid": "23367736", "title": "", "text": "usually deal cocaine base while white males tend to deal in powdered cocaine. Finally, they urge that the disparate impact on African-Americans is the kind of circumstance the Sentencing Commission did not consider, and thus, the district court erred in concluding it did not have authority to depart from the guidelines. We have on numerous occasions held that claims of error on failing to depart downward are not reviewable. Johnson, 28 F.3d at 1500; United States v. Evidente, 894 F.2d 1000, 1004 & n. 5 (8th Cir.) (failure-to-depart claims based on circumstances the Sentencing Commission did not adequately consider are not reviewable), cert. denied, 495 U.S. 922, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990); see Maxwell, 25 F.3d at 1400-01 (reversing district court’s departure based on disparate racial impact and concluding that Sentencing Commission’s failure to consider the disparate impact of the 100:1 ratio is not a ground for downward departure). C. MeMurray also contends that the district court erred in treating the powder cocaine he was convicted of distributing as cocaine base for the purpose of determining his sentence. After recognizing that the transaction at issue involved only powder cocaine, the court stated: It is clear that the powder was intended for conversion to “crack” since it is undisputed that MeMurray knew [Tracy Lomax] sold “crack.” The fact that the powder was seized before it was converted to crack is not significant. United States v. McMurray, 833 F.Supp. 1454, 1476 n. 31 (D.Neb.1993). The court further stated that it converted the amount of powder cocaine to cocaine base for the purpose of determining McMurray’s sentence because it did “not think the seizure of the powder cocaine ‘reflects] the scale of the offense’ unless the powder is treated as ‘crack.’ ” Id. (quoting U.S.S.G. § 2D1.1, cmt. n. 12). The Sentencing guidelines use a determination of the quantity and identity of the controlled substance attributed to the defendant to establish a base offense level. See U.S.S.G. § 2D1.1. “The government must establish by a preponderance of the evidence both the type and amount of drug attributable to each defendant.” Maxwell," }, { "docid": "23367737", "title": "", "text": "purpose of determining his sentence. After recognizing that the transaction at issue involved only powder cocaine, the court stated: It is clear that the powder was intended for conversion to “crack” since it is undisputed that MeMurray knew [Tracy Lomax] sold “crack.” The fact that the powder was seized before it was converted to crack is not significant. United States v. McMurray, 833 F.Supp. 1454, 1476 n. 31 (D.Neb.1993). The court further stated that it converted the amount of powder cocaine to cocaine base for the purpose of determining McMurray’s sentence because it did “not think the seizure of the powder cocaine ‘reflects] the scale of the offense’ unless the powder is treated as ‘crack.’ ” Id. (quoting U.S.S.G. § 2D1.1, cmt. n. 12). The Sentencing guidelines use a determination of the quantity and identity of the controlled substance attributed to the defendant to establish a base offense level. See U.S.S.G. § 2D1.1. “The government must establish by a preponderance of the evidence both the type and amount of drug attributable to each defendant.” Maxwell, 25 F.3d at 1397. We review the district court’s determination of the quantity of drugs for clear error, and will reverse only if we are left with a firm and definite conviction that a mistake has been made. United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir.1993). A sentencing court may consider any evidence as long as it has sufficient indicia of reliability to support its probable accuracy. Id.; United States v. Sales, 25 F.3d 709, 711 (8th Cir.1994). Recently, in United States v. Maxwell, this court held that the district court did not clearly err in calculating the quantity of drugs as cocaine base rather than powder cocaine because “that was the form in which the cocaine was finally distributed to persons outside of the conspiracy.” 25 F.3d at 1397. Similarly, there was ample evidence that the eoconspirators in this case, including MeMurray, distributed cocaine base rather than powder cocaine. For example, authorities seized drug paraphernalia used to convert powder cocaine to cocaine base, and several witnesses testified about the coconspirators’ cocaine base" }, { "docid": "6059308", "title": "", "text": "the conspiracy continues. See United States v. Rabins, 63 F.3d 721, 724 (8th Cir.1995) (noting that change in drag suppliers indicated the varied phases of a single drug conspiracy). The defendant may not have been aware of every aspect of the conspiracy or the amount of each drag transaction. See United States v. Edwards, 994 F.2d 417, 420 (8th Cir.1993) (explaining that the commission of separate crimes by co-conspirators does not rule out the existence of a single conspiracy), cert. denied, — U.S. -, 114 S.Ct. 701, 126 L.Ed.2d 667 (1994). But full knowledge of “all other conspirators or all details of the conspiracy” is not necessary “in order for a single conspiracy to exist of which the defendant is a part.” United States v. Adipietro, 983 F.2d 1468, 1475 (8th Cir.1993). Denial of the defendant’s motion for judgment of acquittal was not plain error. IV. The defendant advances two arguments in hopes of lowering his sentence. First, he claims that the Court erred in its calculation of the drug quantity for which he could be held responsible. Second, he argues that the Court erred by refusing to grant him a § 5K2.0 downward departure. We reject both arguments for the reasons discussed below. A. The Court sentenced the defendant based on a criminal history category of I, with a base offense level of 36. The guideline sentencing range for the defendant at level 36 is 188 to 235 months. The defendant now contends that the Court miscalculated the quantity of cocaine attributable to him under U.S.S.G. § IB 1.3 when determining his base offense level. We review the Court’s drug-quantity determination for clear error. Smith, 49 F.3d at 365. Section 1B1.3 provides that the District Court may hold a co-conspirator responsible for “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” U.S.S.G. § lB1.3(a)(l)(B). Thus, a defendant may be held accountable for the criminal activities of other co-conspirators which “fall within the scope of criminal activity [he] agreed to jointly undertake,” including “other drug transactions” which “are part of the same course" }, { "docid": "5212203", "title": "", "text": "reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” United States v. Ware, 282 F.3d 902, 907 (6th Cir.2002) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). The United States Sentencing Guidelines provide: Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance. In making this determination, the court may consider, for example, the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved. U.S.S.G. § 2D1.1 app. note 12 (2007). “[T]he evidence supporting the [sentencing court’s] estimate ‘must have a minimal level of reliability beyond mere allegation, and the court should err on the side of caution in making its estimate.’ ” United States v. Sandridge, 385 F.3d 1032, 1037 (6th Cir.2004) (quoting United States v. Owusu, 199 F.3d 329, 338 (6th Cir.2000)). Seized funds can be converted into an equivalent amount of drugs. Id. To do so, “the Government must prove by a preponderance of the evidence both the amount of money attributable to drug activity and the conversion ratio — i.e., the price per unit of drugs.” Id. (citing United States v. Jackson, 990 F.2d 251, 253 (6th Cir.1993)). Russell never challenged the conversion ratio used by the government ($800 per ounce). Therefore, the only issue on appeal is the amount of money attributable to the sale of cocaine base. Russell claims that the district court clearly erred when it converted the entire $11,375 found on him at his arrest into cocaine base. Further, he argues that the district court’s finding that no less than $4,700 of the $11,375 was attributable to the sale of cocaine base did not involve a proper “weighing of the evidence.” He argues that his sentence should be vacated under Sandridge, in which we held that the government had failed to meet its burden" }, { "docid": "22167482", "title": "", "text": "jury could have convicted on the predicate drug offense. Carter’s conviction on Count Five passes muster under the Munoz-Fabela approach because the jury was unable to reach a verdict for conviction or acquittal on the predicate drug offense. Because there was no affirmative acquittal on Count One, a reasonable jury could theoretically have convicted on the predicate drug offense embodied by that Count. VIL Jerry McRae challenges the district court’s finding that he was responsible for more than 500 but less than 1500 grams of crack cocaine, establishing a sentencing guideline base offense level of 36 pursuant to U.S.S.G. § 2D1.1. After consideration of other factors, McRae’s guideline range was set at 360 months to life in prison. Drug quantity determination is governed by the following standards. The Government must prove by a preponderance of the evidence the amount of controlled substances attributable to a defendant. See United States v. Johnson, 54 F.3d 1150, 1156 (4th Cir.1995). When objecting to drug quantities as set forth in the Presentence Report, the defendant has an affirmative duty to show that the information contained in the report is inaccurate or unreliable. See United States v. Terry, 916 F.2d 157, 162 (4th Cir.1990). A district court’s findings regarding drug quantity are factual in nature and are reviewed only for clear error. See United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.1996). McRae argues that the drug quantity determination the district court attributed to him was clearly erroneous because of a discrepancy between the trial testimony of Edward Ward (indicating Ward had only received cocaine from McRae on a few occasions) and Ward’s statements to agents outside of court (which suggested Ward had purchased around 567 grams of cocaine from McRae). Because the sentencing judge had only to find the relevant drug quantities by a preponderance of the evidence, the discrepancy in Ward’s testimony is not fatal to the government’s proof. The selfcon-tradictions in Ward’s testimony essentially raise a credibility issue' — a question of fact that the district court must resolve at sentencing. The district court’s factual findings regarding the relative credibility of" }, { "docid": "23176282", "title": "", "text": "Hutchinson, Albert Brown, and Kenyatta Brown challenge the sufficiency of the evidence supporting the district court’s de terminations concerning the drug quantities attributable to them for sentencing purposes. “We review the district court’s determination as to the quantity of drugs attributable to a defendant under the clearly erroneous standard.” United States v. Beasley, 2 F.3d 1551, 1561 (11th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 2751, 129 L.Ed.2d 869 (1994). “Calculating the base offense level for drug distribution requires a determination of the quantity of illegal drugs properly attributable to a defendant.” United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir.1995). ‘Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance.” U.S.S.G. § 2D1.1, comment, (n. 12) (1993). In estimating the quantity of drugs attributable to a defendant, a court may base its computation on evidence showing the average frequency and amount of a defendant’s drug sales over a given period of time. See, e.g., United States v. Green, 40 F.3d 1167, 1175 (11th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1809, 131 L.Ed.2d 733 and — U.S. -, 115 S.Ct. 2262, 132 L.Ed.2d 268 (1995); United States v. Robinson, 935 F.2d 201, 205 (11th Cir.1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 885, 116 L.Ed.2d 789 (1992). The government must establish the amount attributable to each defendant by a preponderance of the evidence. Butler, 41 F.3d at 1444. As such, “[acquitted conduct may be considered by a sentencing court because a verdict of acquittal demonstrates a lack of proof sufficient to meet a beyond-a-reasonable-doubt standard — a standard of proof higher than that required for consideration of relevant conduct at sentencing.” United States v. Averi, 922 F.2d 765, 766 (11th Cir.1991). 1. Hutchinson In' judging Hutchinson guilty of Counts 8-15, the jury found him responsible for distributing 14.7 grams of cocaine base. In calculating Hutchinson’s base offense level under the guidelines, however, the district court held him responsible for distributing between thirty-five and fifty grams of the narcotic." } ]

[ { "docid": "23304973", "title": "", "text": "“Badge of infamy” is too strong a term, but it is realistic to conclude that non-retention by one university or college creates concrete and practical difficulties for a professor in his subsequent academic career. The balancing test of Cafeteria Workers v. McElroy compels the conclusion that under the due process clause of the Fourteenth Amendment the decision not to retain a professor employed by a state university may not rest on a basis wholly unsupported in fact, or on a basis wholly without reason. This standard is intended to be considerably less severe than the standard of “cause” as the latter has been applied to professors with tenure. Unless this substantial distinction between the two standards is recognized in case-by-case application of the constitutional doctrine here enunciated, the rationale for the underlying doctrine will be gravely impaired. To be more direct, in applying the constitutional doctrine, the court will be bound to respect bases for non-retention enjoying minimal factual support and bases for non-retention supported by subtle reasons. In deciding to afford to professors in a state university substantive protection against arbitrary non-retention, I am strengthened by an awareness that this is consistent with the development of the law with respect to public employment generally. The time is past in which public employment is to be regarded as a “privilege” which may be extended upon any conditions which public officials may choose to impose. See Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L.Rev. 1439 (1968); Davis, the Requirment of a Trial-Type Hearing, 70 Harv.L.Rev. 193, 234 (1956). In Birnbaum v. Trussell, 371 F.2d 672, 678 (2d cir. 1966), after a review of the decisions of the Supreme Court and other courts, it was said that the “principle to be extracted from these cases is that, whenever there is a substantial interest, other than employment by the state, involved in the discharge of a public employee, he can be removed neither on arbitrary grounds nor without a procedure calculated to determine whether legitimate grounds do exist.” The latter comment brings me to a conclusion which" } ]

[ { "docid": "1975075", "title": "", "text": "PHILLIPS, Chief Judge. Monte R. Blair was a non-tenured professor at Memphis State University. His contract was not renewed at the end of his fifth year as a member of the faculty. He filed this action pursuant to 42 U.S.C. § 1983, contending that the method followed by the University in not renewing his contract and in not granting him tenure violated the minimum requirements of the Due Process Clause of the Fourteenth Amendment. The District Court held that appellee had been deprived of the minimum standards of due process and ordered that he be reinstated as a non-tenured professor until he has been afforded a due process hearing as prescribed in the memorandum opinion of that court. We reverse on authority of Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971), cert. denied, 408 U.S. 943, 92 S.Ct. 2847, 33 L.Ed.2d 767 (1972). In Orr this court recognized that a due process hearing must be accorded to a non-tenured teacher if his contract is not renewed because he had exercised his rights of free speech as guaranteed by the First Amendment; or if the non-renewal is in violation of the Self-Incrimination Clause of the Fifth Amendment, the Due Process Clause of the Fifth or Fourteenth Amendments, or the Equal Protection Clause of the Fourteenth Amendment. All of these we declared to be constitutionally impermissible reasons for refusal to rehire a teacher. 444 F.2d at 134. In the present case the reason for non-renewal, given in writing to the University’s Vice-President for Academic Affairs, by the Chairman of Blair’s department, was that “I believe his professional relationships with individual students frequently fail to meet minimum standards.” In Orr we pointed out that the reason for the probationary period required prior to tenure is to give the school authorities “a chance to evaluate the teacher without making a commitment to rehire him.” 444 F.2d at 135. See also Hetrick v. Martin, 480 F.2d 705 (6th Cir. 1973); Patrone v. Howland Local Schools Board of Education," }, { "docid": "4904557", "title": "", "text": "a violation of a liberty or property interest to which due process would apply, and that cross-plaintiff’s freedom of speech has not been infringed because statements made to supervisors are not protected by the First Amendment. The Supreme Court has held, in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), that non-tenured faculty members dismissed from their positions may be entitled to due process protection so long as they can demonstrate an infringement of some property or liberty interest protected by the Fourteenth Amendment. In Roth, an assistant professor who had been hired to teach in a state university for one academic year was advised that he would not be rehired for the coming year. The university rules did not require that any reason be given for the decision not to rehire, and no reason was in fact given for the dismissal. The faculty members at that university had no tenure rights to continued employment, and state law left employment decisions regarding nontenured teachers to the discretion of university officials. After learning of his termination, the teacher filed suit alleging that the university’s refusal to advise him of the reasons for his nonretention, coupled with its failure to provide a hearing, violated his right to procedural due process. The Supreme Court rejected this claim, stating: “. . . The only question presented to us at this stage in the case is whether the respondent had a constitutional right to a statement of reasons and a hearing on the University’s decision not to rehire him for another year. We hold that he did not. The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.” 408 U.S. 564, 569-570, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548. The Supreme Court first" }, { "docid": "23230026", "title": "", "text": "as a matter of policy. Access as of right has been granted in a number of states. E.g., Conn. Gen.Stal.Ann. § 10-151 (a) (Supp. 1967). Finally, while access by a teacher to an administrator’s frank appraisal of his ability might lead to embarrassment and friction if the teacher-administrator relationship were to continue, such a consideration is moot when the teacher has not been rehired. The relationship could, be further impaired only in the unlikely case that the decision not to rehire were reversed despite negative reports; and in such a case, the avoidance of an unjustified non-retention must outweigh the danger of disharmony. We therefore hold that the interests of the non-tenured teacher in knowing the basis for his non-retention are so substantial and that the inconvenience and disadvantages for a school board of supplying this information are so slight as to require a written explanation, in some detail, of the reasons for non-retention, together with access to evaluation reports in the teacher’s personnel file. Appellant, however, argues further that the right to a statement of the reasons for not being rehired is meaningless unless the school board can be forced to prove those reasons at a hearing. As an initial response, we note that a hearing is not constitutionally compelled in all cases where individual rights may be impaired. “The Fifth Amendment does not require a trial-type hearing in every conceivable case of government impairment of private interest. * * * The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, supra 367 U.S. at 894-895, 81 S.Ct. at 1748. It is obvious that the kind of hearing sought by appellant, see note 1, supra, would involve the full trappings of counsel, cross-examination, rules of evidence, a verbatim record, and a decider other than the school bo.ard. Not only would the invoking of such adjudicative appa ratus be an added, expensive and unfamiliar obligation for the school district, but the very existence of the right of a non-tenured teacher to such" }, { "docid": "22253304", "title": "", "text": "sue upon such a theory, appropriate averments could have been made in the complaint and he could have proceeded to a trial and presented evidence in the District Court, rather than submitting his case on a stipulation of facts. However, he did not so elect. Rather, his primary contention is that the failure to- give reasons for the non-renewal of his contract and a hearing at which he can challenge the reasons is itself a constitutional violation. He argues that the refusal to rehire him without giving any reasons was arbitrary and capricious action, thus violating his substantial rights under the Fourteenth Amendment due process clause. We reject this argument for two reasons. First, the Fourteenth Amendment only protects against the State depriving one of life, liberty, or property without due process of law. “It has been held repeatedly and consistently that Government employ is not ‘property.’ * * * We are unable to perceive how it could be held to be ‘liberty.’ Certainly it is not ‘life.’ ” Bailey v. Richardson, 182 F.2d 46 (D.C.Cir.), aff’d by an equally divided Court, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352. Second, in the unique situation of a probationary school teacher, the failure to give reasons for the refusal to rehire is not arbitrary and capricious action on the part of the Board since the very rea son for the probationary period is to give the Board a chance to evaluate the teacher without making a commitment to rehire him. A non-tenured teacher’s interest in knowing the reasons for the non-renewal of his contract and in confronting the Board on those reasons is not sufficient to outweigh the interest of the Board in free and independent action with respect to the employment of probationary teachers. The Board is not a legal tribunal. It is an employer, and when it decides to hire or not to hire a particular teacher, it is acting “as proprietor, to manage the internal operation” of the public schools. Cafeteria and Restaurant Workers, Local No. 473 v. McElroy, supra, 367 U.S. at 896, 81 S.Ct. at" }, { "docid": "12433281", "title": "", "text": "court made it clear that the prescribed procedure was designed to safeguard a due process right that “the decision not to retain a professor employed by a state university may not rest on a basis wholly unsupported in fact, or on a basis wholly without reason,” and that the “standard is intended to be considerably less severe than the standard of ‘cause’ as the latter has been applied to professors with tenure.” (p. 979.) Defendants do not question the proposition, documented by the district court at page 976, that the “employment of a teacher in a public school cannot be terminated because he has exercised that freedom secured to him by the Constitution of the United States.” They would say that the proposition (which they deny) that reemployment was denied plaintiff because of his exercise of protected rights is for him to prove, if he is able, in the branch of this case which is not now before us. The contest on this appeal is whether the state university, in deciding not to retain a non-tenured professor, must initially shoulder the burden of exposing to the limited test ordered by the district court the reasons on which its decision is predicated, and to that extent demonstrate that its reasons are not impermissible, or whether the first recourse of the professor is to attempt to establish in the judicial forum that the reasons are impermissible. Defendants rely on the traditional principle “that government employment, in the absence of legislation, can be revoked at the will of the appointing officer.” Cafeteria Workers, involved denial by government of an individual’s access to a government facility, resulting in inability to continue private employment at that facility. Although the Supreme Court suggested that the individual’s interest in access to her job was closely analogous to the interest of a govern ment employee in retaining his job, and in that connection stated the principle relied on by defendants, the Court also held that “consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature" }, { "docid": "4755582", "title": "", "text": "by the Constitution. “Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.... Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). In Roth, the court held that a non-tenured teacher who was refused employment after expiration of a one-year contract had no claim of entitlement to the job because state law left the retention of such teachers in the total discretion of school officials. Id. at 578, 92 S.Ct. at 2709. The Court noted that the teacher “surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment.” Id. (emphasis in original). Cases decided after Roth have re-emphasized the principle that the meaning of local law is crucial when deciding whether a property interest is protected by due process. See, e.g., Bishop v. Wood, 426 U.S. 341, 344 n. 7, 96 S.Ct. 2074, 2077 n. 7, 48 L.Ed.2d 684 (1976). Though a state may create a property interest, it cannot define the procedures for terminating that interest unless the state procedures meet or exceed the minimum procedural requirements of federal due process. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 539-42, 105 S.Ct. 1487, 1492-93, 84 L.Ed.2d 494 (1985). The Commission appointed Dr. Galvin to the CME position pursuant to Section 19a-404 of the General Statutes, which states in relevant part: “His term of office and annual salary shall be fixed by the commission and he may be removed by the commission only for cause.” Conn.Gen.Stat. Section 19a-404. The plaintiff argues that this provision, by use of the phrase “only for cause,” creates an entitlement to employment that can be divested only after due process safeguards are satisfied. Plaintiffs Brief in Opposition to Motion to Dismiss (“Plaintiff’s Brief”) at 17-20. The Court has found that a state statute permitting employment dismissal “only for cause” creates a property interest protected by due" }, { "docid": "2669207", "title": "", "text": "Regents, 310 F.Supp. 972 (W.D.Wis.1970), aff’d, 446 F.2d 806 (7th Cir.19.71), rev’d, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the plaintiff was hired as a teacher at a state college for a one-year term. When college officials did not renew his contract of employment, Roth argued that their refusal to do so violated both his First Amendment rights and his procedural due process rights. Judge Doyle granted Roth’s motion for summary judgment on the procedural due process claim and stayed proceedings on the First Amendment claim. Employing the general balancing test of Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), Judge Doyle balanced Roth’s interests in being rehired and the state’s interests in summary non-retention decisions and concluded that due process required that college officials provide Roth with an explanation for their decision and an opportunity to be heard regarding that decision. Judge Doyle, while recognizing that the substantive First Amendment claim was a discrete one, also reasoned that requiring a hearing before the decision concerning retention was made would also serve to vindicate important First Amendment interests at stake in the college environment. 310 F.Supp. at 979-80. This court affirmed Judge Doyle’s judgment employing essentially the same rationale as the district court. We balanced the grievous loss one suffers when not retained in a job against the need for a summary decision, 446 F.2d at 808-09, and observed that the requirement of a hearing would serve as a “prophylactic” against decisions based on impermissible reasons, id. at 810. Judge Duffy dissented, basically arguing that since Roth was not a tenured faculty member, the college officials could deny him re-employment summarily. The Supreme Court’s decision reversing our judgment was a landmark in constitutional jurisprudence. Eschewing a general balancing test for the purpose of determining whether the Fourteenth Amendment mandates procedural protections concerning a state decision which adversely affects an individual, the Court instead held that the threshold question in a procedural due process case is whether an individual has a liberty or property interest at stake.- The Court recognized the broad" }, { "docid": "7408617", "title": "", "text": "of “good cause” as a condition to dispensing with confrontation. 408 U.S. at 489, 92 S.Ct. 2593. No such finding was made below. Moreover, if, as the concurring opinion of Justices Brennan and Marshall indicates, see n. 7, supra, the finding of good cause must be based on some degree of danger to the informer, we doubt that it could be made in these circumstances. Morrissey’s insistence on a specific finding in each case precludes reliance on a general government interest in fostering and protecting secret informers. Finally, the government relies on Cafeteria Workers v. McElroy, 367 U.S. at 896, 81 S.Ct. 1743, where, in holding that a concession employee could be barred from a military installation for “security” reasons without a hearing, the majority stated: “The Court has consistently recognized that the interest of a government employee in retaining his job, can be summarily denied. It has become a settled principle that government employment, in the absence of legislation, can be revoked at the will of the appointing officer.” 367 U.S. at 896, 81 S.Ct. at 1749. We are not persuaded that this principle is now as firmly embedded in our jurisprudence as it may have been in 1961, or that the holding in Cafeteria Workers necessarily controls our decision. First, Cafeteria Workers appears to rest to some extent on the supposed dichotomy between privileges and rights. Compare id., at 894 with id., at 895-896, 81 S.Ct. 1743. See A. Bickel, The Supreme Court 1960 Term, Foreword: The Passive Virtues, 75 Harv.L.Rev. 40, 73 (1961). The privilege/right dichotomy has since been discredited. Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Morrissey, 408 U.S. at 481, 92 S.Ct. 2593. Secondly, the cases which Cafeteria Workers cited support the quoted proposition, but did not squarely address the issue of procedural due process rights. Although these cases establish the government’s power to remove employees, none presented the Court with any opportunity to discuss the restraints which procedural due process might impose on the government. In Vitarelli v. Seaton, supra, the Court did affirm the government’s power" }, { "docid": "7310240", "title": "", "text": "Trinter, supra; Drown v. Portsmouth School District, 435 F.2d 1182 (1st Cir. 1970). The case at bar, however, is not controlled by these decisions. Here plaintiff claims that the defendants’ failure to reemploy him violated his substantive constitutional rights. Where this is so and a teacher has “an expectancy of reemployment” it has been held that procedural due process can be satisfied only by the granting of an administrative hearing. Lucas v. Chapman, 430 F.2d 945 (5th Cir. 1970). While the phrase “expectancy of reemployment” has been applied to specific factual situations, it is a slippery one to which no precise definition has been assigned. Lucas found that plaintiff’s “long employment [eleven years in the system] in a continuing relationship through the use of renewals of short-term contracts was sufficient to give [the plaintiff] the necessary expectancy of reemployment that constituted a protectible interest.” (p. 947). The adoption by school authorities of “regulations or standards of practice governing non-tenured employees” may create an expectation of reemployment. Ferguson v. Thomas, 430 F.2d 852, 856 (5th Cir. 1970). Sindermann v. Perry, 430 F.2d 939 (5th Cir. 1970) held that the plaintiff may have an expectancy of reemployment “under the policies and practices of the institution” (p. 943), but that even without such an expectancy a non-tenured teacher is entitled to an administrative hearing. Roth v. Board of Regents, 310 F.Supp. 972 (W.D.Wis.1970), aff’d 446 F.2d 806 (7th Cir. 1971), cert. granted, 404 U.S. 909, 92 S.Ct. 227, 30 L.Ed.2d 181, was not based upon a finding of expectancy of reemployment but, nonetheless, held that an administrative hearing was required, if demanded, when a teacher claims his nonretention is based upon his exercise of constitutional freedoms or on arbitrariness. In Freeman v. Gould Special School District, 405 F.2d 1153 (8th Cir. 1969) the court held that a teacher without tenure who had not been reemployed had no right to an administrative hearing even though he asserted that his denial of reemployment was arbitrary and capricious and thus a violation of substantive due process. The same conclusion was arrived at in Shields v. Watrel," }, { "docid": "5613657", "title": "", "text": "appeal the first order, now seek to argue that Thomas was deprived of no property interest protected by the Fourteenth Amendment and that, in any event, the first hearing met due process standards. I. We agree with the district court that Mr. Thomas had a protected property interest in continued employment. The Supreme Court, in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 83 L.Ed.2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) made it clear that a teacher’s property interests are not limited to formal tenure or contract rights. Thus, explicit contractual provisions may be supplemented by other agreements implied from the promisor’s words and conduct in light of the surrounding circumstances. And, a teacher who has held his position for a number of years might be able to show that he has a legitimate claim of entitlement to job tenure. Such is the case before us, for, through its Handbook, the School Board fostered an understanding that after a temporary or probationary status for their first three years, teachers would be employed on a continuing contract basis, subject only to dismissal for cause. Mr. Thomas was clearly no longer a probationary employee, having been employed under this policy for five years, and thus had a legitimate claim of entitlement to continued employment that could not be taken without due process. See Zimmerer v. Spencer, 485 F.2d 176 (5th Cir. 1973); Johnson v. Fraley, 470 F.2d 179 (4th Cir. 1972). II. The district court also properly held that the first hearing before the Board did not meet due process standards. It is by now a truism that due process is a flexible concept, the very nature of which negates any concept of inflexible procedures universally applicable to every imaginable situation. E. g. Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). And, while the right to confront and cross-examine live witnesses does not necessarily attach to every administrative hearing, see Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935" }, { "docid": "9485201", "title": "", "text": "We do not read that section as granting him, a probationary teacher under applicable North Carolina law, a right to a hearing. The section expressly empowers the Board to refuse renewal of the contract to a probationary teacher for “any cause it deemed sufficient; provided, however, that the cause may not be arbitrary, capricious, discriminatory or for personal or political reasons.” It makes no provision whatsoever for any hearing when renewal is denied a probationary teacher. If there is a claim of “arbitrary or capricious” nonrenewal, it is an independent right of action, triable, not by the school Board but by the Court. That this omission of a right to a hearing in the case of a probationary teacher was not inadvertent but purposeful appears plain from the other provisions in the Amendments which specifically require hearings on the nonrenewal of the contract of a “career teacher” (i. e., one with tenure). The absence of any similar provision for probationary teachers in the Amendments compels, it seems to us, the conclusion that no such right to a hearing was intended or contemplated for the probationary teacher denied renewal. And this appears to be the construction placed on the statute by the North Carolina courts. Taylor v. Crisp, supra. It follows that any right of the plaintiff to a hearing must rest on his claim of “de facto tenure.” And this is apparently the view of the plaintiff for it is not to the North Carolina law but to Roth and Sindermann that he basically looks for support of his claim of right to a due process hearing. . Due process is not a “rigid formula or simple rule of thumb,” Hagopian v. Knowlton (2d Cir. 1972) 470 F.2d 201, 207, and, “[t]he Fifth Amendment does not require a trial-type hearing in every conceivable case of government impairment of private interest. * * * The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v. McElroy (1961) 367 U.S. 886, 894-5, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230. . Birdwell v." }, { "docid": "12433304", "title": "", "text": "whether the employee could be so excluded without the opportunity for a hearing (p. 747, n. 2) we deliberately stated that we “need not decide” that question because the case could be resolved otherwise. I think that such a practice should have been followed by the District Judge in the case at bar with, perhaps, the consequence that such a wide reaching and unsettling result would not have been reached. In my view, the State’s interest in preserving a workable system of tenure which includes, almost by definition, the ability to select freely and maturely its non-tenured teaching personnel, far outweighs any expectancy which the plaintiff David Roth might have had in continued employment at Wisconsin State University. I believe that the teaching of Cafeteria and Restaurant Workers, etc. v. McElroy, supra, supports this view especially when the great burden this Court’s holding will present for states is considered. I further believe that the majority’s holding is both unprecedented and represents an unwarranted intrusion of the Federal Judiciary into state educational systems. It is one thing to recognize that “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools” (Shelton, 364 U.S. at page 487, 81 S.Ct. at page 251), and that “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the sehoolhouse gate” (Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) but it is quite another to hold that anxiety over hypothetical infringements of unknown constitutional freedoms demands that states accord the full panoply of procedural due process guarantees for those teachers whose services they designate as no longer required. We should follow the decision in Freeman v. Gould Special School District, supra, where the Court held that probationary instructors whose contracts were not renewed, were not entitled to a hearing with notice. I respectfully dissent. . Brief of the Board of Governors of State Colleges and Universities of Illinois, the Board of Regents of Regency Universities of Illinois, the" }, { "docid": "12588877", "title": "", "text": "Perspectives’ continued funding and that procedural improprieties in the consideration of their grant proposal —specifically, the lack of formal procedural guidelines, CRB prejudicé, and improper intervention by two Congressmen — deprived them of this interest without due process of law. Defendants move to dismiss this claim, arguing that the Institute had no property interest which the Fifth Amendment protects. The seminal case is Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In Roth a non-tenured university professor’s one-year appointment was not renewed. Prior to the rendering of the decision not to renew no hearing was held to evaluate his performance, and he was given no reasons for the decision. He claimed a property interest in his job which could not be taken without due process. The Supreme Court held that whether the professor possessed a property interest in renewal of his contract which implicated the Fifth Amendment depended upon the nature of the interest created by the terms which governed renewal of his contract. In order to create a property interest, the terms must create a “legitimate claim of entitlement” to continued employment. That the teacher had a “unilateral expectation” of it was held irrelevant. 408 U.S. 577-578, 92 S.Ct. 2709. The university rules governing renewal of the contract granted no right to a hearing or a statement of reasons for non-renewal, nor did they specify conditions un der which a teacher would or would not be kept on. They merely set a date by which time the teacher was to be informed of the university's decision. The contract itself specifically set its term at one year. The Court found that neither the terms of the plaintiffs contract nor the rules governing re-appointment created a “legitimate claim” to re-employment, for they “secured absolutely no interest in re-employment.” 408 U.S. at 578, 92 S.Ct. at 2709. This was held true despite the fact that most one-year teachers at the university were granted renewal of their contracts. 408 U.S. at 578 n. 16, 92 S.Ct. at 2710 n. 16. The Institute was in a very" }, { "docid": "2669206", "title": "", "text": "employee may be discharged he must be afforded a meaningful opportunity to be heard. I believe that Hostrop was correctly decided. When I say “correctly” decided, I mean that it was decided in accordance with the authoritative pronouncements of the United States Supreme Court and remains good law in light of subsequent precedent. Whether it was correctly decided in some sort of ultimate jurisprudential or philosophical sense is not within my domain as an intermediate appellate court judge once I have decided that it was properly decided in the former sense. My brother Posner calls this approach to deciding cases “putting the blame on the [Supreme] Court.” Post at 1456. I call it adherence to stare decisis and to a superior authority. In light of the fact that Judge Posner believes that my brother Wood and I have engaged in a selective reading of precedent, reading some cases “broadly” and others “narrowly,” I shall explain my own understanding of what I consider to be the controlling authority in this case. In Roth v. Board of Regents, 310 F.Supp. 972 (W.D.Wis.1970), aff’d, 446 F.2d 806 (7th Cir.19.71), rev’d, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the plaintiff was hired as a teacher at a state college for a one-year term. When college officials did not renew his contract of employment, Roth argued that their refusal to do so violated both his First Amendment rights and his procedural due process rights. Judge Doyle granted Roth’s motion for summary judgment on the procedural due process claim and stayed proceedings on the First Amendment claim. Employing the general balancing test of Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), Judge Doyle balanced Roth’s interests in being rehired and the state’s interests in summary non-retention decisions and concluded that due process required that college officials provide Roth with an explanation for their decision and an opportunity to be heard regarding that decision. Judge Doyle, while recognizing that the substantive First Amendment claim was a discrete one, also reasoned that requiring a hearing before the decision concerning" }, { "docid": "22253305", "title": "", "text": "(D.C.Cir.), aff’d by an equally divided Court, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352. Second, in the unique situation of a probationary school teacher, the failure to give reasons for the refusal to rehire is not arbitrary and capricious action on the part of the Board since the very rea son for the probationary period is to give the Board a chance to evaluate the teacher without making a commitment to rehire him. A non-tenured teacher’s interest in knowing the reasons for the non-renewal of his contract and in confronting the Board on those reasons is not sufficient to outweigh the interest of the Board in free and independent action with respect to the employment of probationary teachers. The Board is not a legal tribunal. It is an employer, and when it decides to hire or not to hire a particular teacher, it is acting “as proprietor, to manage the internal operation” of the public schools. Cafeteria and Restaurant Workers, Local No. 473 v. McElroy, supra, 367 U.S. at 896, 81 S.Ct. at 1749. As was stated by Mr. Justice Brennan in his dissent in Nelson v. Los Angeles County, 362 U.S. 1, at 16, 80 S.Ct. 527, at 535, 4 L.Ed.2d 494: “Doubtless a probationary employee can constitutionally be discharged without specification of reasons at all; and this Court has not held that it would offend the Due Process Clause, without more, for a State to put its entire civil service on such a basis, if as a matter of internal policy it could stand to do so.” While an employee may not be barred from future employment for reasons that are patently arbitrary or discriminatory, Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, supra, this does “not alter the power of the [Board] to discharge summarily an employee in [plaintiff’s] status, without the giving of any reason.” Vitarelli v. Seaton, 359 U.S. 535, 539, 79 S.Ct. 968, 972, 3 L.Ed.2d 1012. If such action is constitutionally permissible in the discharge of an employee, then assuredly it is permissible in the refusal to renew the contract" }, { "docid": "23321799", "title": "", "text": "prohibits state deprivations of life, liberty, or property without due process of law. Application of this prohibition requires a familiar two stage analysis: we first must ask whether the asserted individual interests are encompassed within the fourteenth amendment’s protection of “life, liberty, or property”; if protected interests are implicated, we then must decide what procedures constitute “due process of law.” In Robb, the Court also stated: “We should not affirm a dismissal at the pleadings stage, especially of a civil rights action, unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Id. at 290. We first address whether Unger’s complaint alleged that Temple infringed upon a liberty interest protected under the Fourteenth Amendment. In Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626-27, 67 L.Ed. 1042 (1923), the Supreme Court stated: [Liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men. The Supreme Court further explored the contours of the protection the Fourteenth Amendment provides for liberty interests in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In Roth, an assistant professor whom a state university had hired without tenure under a one year contract was informed that he would not be rehired for the following academic year. Id. at 566, 92 S.Ct. at 2703-04. The teacher brought suit, alleging an infringement of property and liberty interests protected under the Fourteenth Amendment. Id. at 568-69, 92 S.Ct. at 2704-05. The Supreme Court held the district court erred when it granted summary judgment in favor of the teacher on his procedural due process claims. The Supreme Court noted that the state university “did not make" }, { "docid": "6755742", "title": "", "text": "the Third Circuit has not had occasion to deal with the question in the context of state teachers, it has held that a probationary state hospital employee is not entitled to an administrative hearing prior to discharge. In Grausam v. Murphey, 448 F.2d 197 (3rd Cir. 1971), the rule of due process was stated to be “one of fairness under the circumstances” and to involve “a balancing of the interests of the employee and the government”. The balance there between the interest of a probationary hospital worker in maintaining his employment and of the state hospital in maintaining orderly and efficient administration was struck in favor of the administration of the hospital. As a non-tenured professor, Mr. Shields is essentially a probationary state employee. Too, the analogy extends to the state which has an important interest in staffing its state colleges and universities with the most competent available professors. Indeed, that interest would seem to underlie the traditional system of tenure. To infringe upon the discretion of the state higher education officials in deciding which of its non-tenured professors or instructors should be retained and which should be released by requiring an administrative hearing for every release would be to unnecessarily burden the administration of the state higher education system. Certainly the state must be free to exercise its discretion, indeed its duty, to retain or grant tenure only to those professors and instructors who in the unfettered judgment of the state officials merit retention or tenure without having to endlessly record reasons for terminating the employment of those who are not retained or granted tenure. Otherwise, the courts would clothe all untenured teachers with the important incidents of tenure and thereby emasculate the system. Moreover, a non-tenured professor is not left without a forum for complaint, for if he thinks the termination of his employment to be for constitutionally impermissible reasons, resort may be had to the courts. In the circumstances of this action, including those of the non-tenured status of Mr. Shields and the year-in-advance notice of his termination, I find that the interest of the state outweighs" }, { "docid": "4755581", "title": "", "text": "C. Wright & A. Miller, Federal Practice and Procedure: Civil Section 1366 (1969 & Supp.1986) (“Wright & Miller”). The court elects not to draw on these extraneous matters in fashioning its ruling. Thus, the defendants’ 12(b)(6) motion shall not be treated as one for summary judgment, and the court will limit its analysis to the four corners of the complaint. B. Fourteenth Amendment The Fourteenth Amendment due process clause attaches only if a state action impairs a person’s “life, liberty, or property.” Where this action does not deny life, liberty, or property, the government need not provide a procedure to determine the fairness of the impairment, no matter how adverse the effect of the action on the individual. The terms life, liberty, and property are not defined in the Constitution, and the Supreme Court has narrowly construed them. In the instant case, the plaintiff alleges that the defendants’ state action deprived her of protected property and liberty interests without due process. (i) Alleged Property Interest Property interests protected by procedural due process are not created by the Constitution. “Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.... Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). In Roth, the court held that a non-tenured teacher who was refused employment after expiration of a one-year contract had no claim of entitlement to the job because state law left the retention of such teachers in the total discretion of school officials. Id. at 578, 92 S.Ct. at 2709. The Court noted that the teacher “surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment.” Id. (emphasis in original). Cases decided after Roth have re-emphasized the principle that the meaning of local law is crucial when deciding whether a property interest is protected by due process. See, e.g., Bishop v. Wood, 426 U.S. 341," }, { "docid": "6755741", "title": "", "text": "First Amendment activities, including Mr. Shields’ participation in the demonstrations surrounding the incursion into Cambodia and the student deaths at Kent State. Moreover, the recommendation that the plaintiff’s employment be terminated originated (August 8, 1970) with the then Chairman of the English Department. Thus the preponderance of the evidence does not support the plaintiff’s contention. Having failed to sustain his burden of proof, his claim that his employment was terminated because of his First Amendment activities must fall. Alternatively, Mr. Shields contends that proeedurally he was entitled to an administrative hearing before his employment was terminated. The circuits seem to be at odds as to this. While the Fifth and Seventh Circuits have held that procedural due process entitles a non-tenured public school teacher to an administrative hearing, the Eighth and Tenth Circuits have held that due process does not require a hearing prior to the dismissal or non-renewal of a nontenured teacher. It is significant, however, that the Supreme Court denied petitions for a writ of certiorari from both of the latter decisions. Although the Third Circuit has not had occasion to deal with the question in the context of state teachers, it has held that a probationary state hospital employee is not entitled to an administrative hearing prior to discharge. In Grausam v. Murphey, 448 F.2d 197 (3rd Cir. 1971), the rule of due process was stated to be “one of fairness under the circumstances” and to involve “a balancing of the interests of the employee and the government”. The balance there between the interest of a probationary hospital worker in maintaining his employment and of the state hospital in maintaining orderly and efficient administration was struck in favor of the administration of the hospital. As a non-tenured professor, Mr. Shields is essentially a probationary state employee. Too, the analogy extends to the state which has an important interest in staffing its state colleges and universities with the most competent available professors. Indeed, that interest would seem to underlie the traditional system of tenure. To infringe upon the discretion of the state higher education officials in deciding which" }, { "docid": "14743631", "title": "", "text": "him for his exercise of rights protected by the first amendment. II. The Due Process Claims At the threshold, successful assertion of any due process claims turns on whether Simard’s interests in renewal of his contract with tenure thereafter rise to the level of those encompassed by the fourteenth amendment’s protection of “liberty” and “property.” In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2717, 33 L.Ed.2d 581 (1972), the Supreme Court considered the interests of non-tenured teachers and concluded that to show deprivation of liberty, a complainant must demonstrate that the reasons given for denial' of tenure would “seriously damage his standing and associations in the community” or foreclose “his freedom to take advantage of other employment opportunities.” 408 U.S. at 573, 92 S.Ct. at 2707. To have a protected property interest, the Court continued, is to have more than a “unilateral expectation” of continued employment; some “legitimate claim of entitlement to it” must be established, 408 U.S. at 577, 92 S.Ct. at 2709, by showing either concrete state rules and regulations or a well-established joint understanding amounting to a “de facto tenure program.” 408 U.S. at 599-602, 92 S.Ct. 2717. The parties differ over whether plaintiff has alleged deprivation of interests constituting liberty or property as the Court has defined these elusive concepts. We need not so decide, however, as we assume, for purposes of argument only, that the fourteenth amendment guarantee of due process applies. A. Procedural Due Process As we have previously observed, however, the inquiry does not end with this assumption; it only begins. Due process does not invariably require the procedural safeguards accorded in a criminal proceeding. Rather “[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria and Restaurant Workers, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). See Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960) (“ ‘Due process’ is an elusive" } ]

[ { "docid": "22476809", "title": "", "text": "claim 5, and that claim 5 viewed as a whole could still differ in scope from claims 1 and 12. There is presumed to be a difference in meaning and scope when different words or phrases are used in separate claims. To the extent that the absence of such difference in meaning and scope would make a claim superfluous, the doctrine of claim differentiation states the presumption that the difference between claims is significant. D.M.I., 755 F.2d at 1574, 225 USPQ at 239; Autogiro, 384 F.2d at 404, 155 USPQ at 708. At the same time, practice has long recognized that “claims may be multiplied ... to define the metes and bounds of the invention in a variety of different ways.” Bourns, Inc. v. United States, 537 F.2d 486, 492, 210 Ct.Cl. 642, 187 USPQ 174, 178 aff'd. per curiam, 199 USPQ 256 (Ct.Cl.1976). Thus two claims which read differently can cover the same subject matter. Further, as this court stated in D.M.I., 755 F.2d at 1574 n. 2, 225 USPQ at 238 n. 2, “[c]laims are always interpretable in light of the specification that led to the patent.” See also Autogiro, 384 F.2d at 397, 155 USPQ at 702 (“No matter how clear a claim appears to be, lurking in the background are documents that may completely disrupt initial views on its meaning”). Whereas under the facts of D.M.I. there was “simply no basis in either the specification or prosecution history” for limiting the claim beyond its literal terms, 755 F.2d at 1574 n. 2, 225 USPQ at 238 n. 2, in Tandon’s case the Commission held that the specification and the prosecution history require that the claims be limited to a non-gimballed, fixed, lower tranducer. Whether or not claims differ from each other, one can not interpret a claim to be broader than what is contained in the specification and claims as filed. See Autogiro, 384 F.2d at 397, 155 USPQ at 702-03 (“[W]ords must be used in the same way in both the claims and the specification.”); 37 C.F.R. 1.75(d)(1): [T]he terms and phrases used in the" } ]

[ { "docid": "15945588", "title": "", "text": "to all other claims at issue. A. The Houghton Process as a “Blueprint” The district court essentially found that the most innovative aspect of Ecolochem’s process was its “[ujnearthing [of] long-neglected art,” holding that “Ecolochem’s good fortune in obtaining the Houghton reference just as the EPRI guidelines created increased attention in the PWR industry to the problem of ambient temperature deoxygenation does not entitle Ecolochem to patent protection.” Id. at *33. Houghton was the co-author of a paper on deoxygenation by carbon catalysis of the reaction between hydrazine and dissolved oxygen, entitled “The Use of Active Carbon With Hydrazine in the Treatment of Boiler Feed Water” (“the Houghton article”). The Houghton article was presented at the 1957 International Water Conference at Bournemouth, England and brought to the attention of Ecolochem at the 1982 International Water Conference. The Houghton article peaked the interest of Ecolochem, and its scientists began performing experiments to determine if the results predicted in Houghton’s paper could be replicated in a laboratory setting. Ecolochem’s scientists were skeptical, because they “had understood that hydrazine reacted very slowly with dissolved oxygen and one of [their] objectives in [the] preliminary experimentation was to run the process to determine if the Houghton process sufficiently catalyzed the reaction.” Miller Deck ¶ 22. The tests supported the Houghton article, but also revealed the presence of ionic substances in the deoxy-genated water coming out of the carbon bed. Houghton did not discuss the ionic contamination. Ecolochem performed subsequent tests to assess its attempts to reduce the presence of the ionic substances, and after considerable experimentation, eventually succeeded with the patented process after more research and considerable experimentation. The district court found that “for years it had been known in the art of water treatment that activated carbon releases ionic substances into water,” but that Ecolochem’s scientists, who the district court found had been employed in the water treatment industry for over a decade by the time the patent issued, were unaware of this contamination at the time they conducted their experiments. Ecolochem, at *11. The district court recognized that the Houghton reference did not" }, { "docid": "15945589", "title": "", "text": "hydrazine reacted very slowly with dissolved oxygen and one of [their] objectives in [the] preliminary experimentation was to run the process to determine if the Houghton process sufficiently catalyzed the reaction.” Miller Deck ¶ 22. The tests supported the Houghton article, but also revealed the presence of ionic substances in the deoxy-genated water coming out of the carbon bed. Houghton did not discuss the ionic contamination. Ecolochem performed subsequent tests to assess its attempts to reduce the presence of the ionic substances, and after considerable experimentation, eventually succeeded with the patented process after more research and considerable experimentation. The district court found that “for years it had been known in the art of water treatment that activated carbon releases ionic substances into water,” but that Ecolochem’s scientists, who the district court found had been employed in the water treatment industry for over a decade by the time the patent issued, were unaware of this contamination at the time they conducted their experiments. Ecolochem, at *11. The district court recognized that the Houghton reference did not anticipate the patent, but felt that: Taken together, the prior art references relevant to Ecolochem’s invention disclose all of the elements of the claimed invention, and their combined teachings would have suggested to one of ordinary skill in the art that the Houghton process could be followed by the use of mixed bed ion exchange resins to provide ambient temperature deoxygenation and remove excess hydrazine as well as dissolved and undissolved carbon contaminants. Id. at *34. “A patent may not be obtained ... if the differences between the [claimed invention] and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.” 35 U.S.C. § 103(a) (Supp. III 1997). Our analysis of the patentability of Ecolo-chem’s invention begins with the phrase “at the time the invention was made.” Here, the date of the invention is presumed to be the filing date of the parent application, December 16, 1983. In In re Dembiczak, we noted" }, { "docid": "20015141", "title": "", "text": "Rather, it is the court’s obligation to determine whether Mobile Water has carried its burden of clear and convincing proof of invalidity either by anticipation or obviousness. A. ANTICIPATION. A patent is invalid if “the invention was ... described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent____” 35 U.S.C. § 102(a). Appearance in a prior publication is termed anticipation. “Anticipation requires the disclosure in a single prior art reference of each element of the claim under consideration.” W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1554 (Fed.Cir.1983), cert. denied, 469 U.S. 851, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984). Mobile Water points to three prior art references as being anticipatory. The court will discuss each seriatim. 1. The Martinola Article. In an article aimed at promoting a deoxygenation process utilizing hydrogen gas and palladium as a catalyst, deoxygenation with hydrazine was discussed in a section devoted to cost comparison of three methods of deoxygenation. Martinola, et al., “Saving Energy by Catalytic Reduction of Oxygen in Feedwater” in Proceedings 41st International Water Conference, Engineering Society of Western Pennsylvania, 77-83 (1980) (Def. Ex. No. 45). The Martinola article states, “When applying activated carbon as a catalyst in the removal of oxygen with hydrazine at ambient temperatures it has to be taken into account that the carbon releases salts into the demineralized water.” Id. at 81. On the following page the authors diagram several applications including the following: Id. at 82. Mobile Water argues that this diagram refers back to the prior discussion of carbon catalyzed hydrazine deoxygenation. Thus, every aspect of the ’492 Patent would be anticipated because it includes the passage of the effluent from the carbon catalyst through a mixed bed resin to remove ionic impurities. The court concludes otherwise. The diagram found on page 82 of the Martinola article is under the bold-faced heading “Application of oxygen reduction in water with hydrogen.” Id. at 81 (em phasis supplied). Thus, the diagram refers to applications of the process the authors are trying to promote — the" }, { "docid": "20015142", "title": "", "text": "Reduction of Oxygen in Feedwater” in Proceedings 41st International Water Conference, Engineering Society of Western Pennsylvania, 77-83 (1980) (Def. Ex. No. 45). The Martinola article states, “When applying activated carbon as a catalyst in the removal of oxygen with hydrazine at ambient temperatures it has to be taken into account that the carbon releases salts into the demineralized water.” Id. at 81. On the following page the authors diagram several applications including the following: Id. at 82. Mobile Water argues that this diagram refers back to the prior discussion of carbon catalyzed hydrazine deoxygenation. Thus, every aspect of the ’492 Patent would be anticipated because it includes the passage of the effluent from the carbon catalyst through a mixed bed resin to remove ionic impurities. The court concludes otherwise. The diagram found on page 82 of the Martinola article is under the bold-faced heading “Application of oxygen reduction in water with hydrogen.” Id. at 81 (em phasis supplied). Thus, the diagram refers to applications of the process the authors are trying to promote — the palladium/hydrogen catalysis — and not the hydrazine process which is discussed in a separate section. This conclusion is buttressed by the fact that the palladium/hydrogen process may also release ionic impurities into the effluent, see id. at 79 (“traces of chlorides or other ions may be released”), thus necessitating a downstream ion exchange resin when high purity deoxygenated water is required. Nothing in the Martinola reference expressly teaches the use of a mixed bed ion exchange resin following the hydrazine/carbon process. Accordingly, the court finds that the Martinola article is not anticipatory. See Akzo N.V. v. U.S. International Trade Commission, 808 F.2d 1471, 1479 (Fed.Cir.1986) (anticipation is a question of fact), cert. denied, — U.S. -, 107 S.Ct. 2490, 96 L.Ed.2d 382 (1987). 2. The Bechtel Publication. Mobile Water also argues that a tome put out by the Bechtel Group in 1982 anticipates the claims of the ’492 Patent. Bechtel Group, Inc., Guide to the Design of Secondary Systems and Their Components to Minimize Oxygen Induced Corrosion (1982) (Def. Ex. No. 4). Unremarkably, the Bechtel" }, { "docid": "15945596", "title": "", "text": "water by the mixed bed. The district court seems to find that the Martinola reference implicitly suggests the combination of the two elements, but discounts “[t]he fact that Martinola did not make Ecolochem’s invention, and instead focused on the hydrogen-palladium method of deoxygenation [a]s not relevant.” Id. at *39. The district court clearly erred in this regard. This fact is completely relevant to the obviousness analysis, since Martinola actually teaches away from combining at least one of the Martinola articles with the Houghton process to achieve Eco-lochem’s claimed process. While the Mar-tinola reference describes a hydrogen and Lewatit-based deoxygenation process and mentions deoxygenation by carbon catalysis of a hydrazine/oxygen reaction, it does so only for comparative purposes. The Martinola reference actually unfavorably compares the hydrazine/carbon process, saying that it “releases salts into the dem-ineralized water” and that the hydrogen-based process is energy saving and significantly less expensive. The Martinola reference is not the only reference that points to problems and concerns with the Houghton process. The Houghton article was challenged from the day it was presented, when an audience member asked whether the process could produce water with acceptable amounts of silica. Houghton responded that contamination was a concern with his process, and both this inquiry and the response were published with the paper in a section entitled “Discussion.” Another paper published contemporaneously with the Houghton article states that: if an activated carbon-bed is used to accelerate the oxygen/hydrazine reaction, it is particularly important that no trace of carbon should enter the boiler ... [i]f it is considered essential that the hydrazine and oxygen should react before entering the boiler, then the use of ultra-violet light is a promising means of accelerating the reaction, without introducing any impurities into the system. S.R.M. Ellis, C. Moreland, The Reaction Between Hydrazine & Oxygen, in The Account of the Proceedings of the International Conference held at Bournemouth, 15th-17th May 1957 8, 21 (1958). In 1960, T.F. Demmitt prepared a “Preliminary Report on the Use of Activated Carbon as a Catalyst for the Dissolved Oxygen-Aqueous Hydrazine Reaction.” Demmitt stated that “[mjagnetite would be more" }, { "docid": "15945586", "title": "", "text": "indeed presented in 1980 by Dr. Mar-tinola with an explanation that it was addressing the use of hydrazine. See Ecolo-chem, at *40. The key element of the presentation, found by the district court to anticipate the claims of the ’411 patent, is Figure 10. We first note that both independent claims 1 and 15 differ from independent claim 20 in contemplating that the final ion exchange step will remove not only dissolved carbon contaminants, but also any excess hydrazine that has not reacted with the dissolved oxygen in the water. Claims 4 and 7-12 (which all depend on claim 1) also require the additional step of removing the excess hydrazine. According to his deposition testimony, Dr. Martinola discussed the removal of the dissolved carbon contaminants at the 1980 presentation, but not the removal of excess, i.e., unreacted, hydrazine. This omission renders clearly erroneous the district court’s finding that claims 1, 4, and 7-12 were anticipated by Dr. Martinola’s presentation, and consequently we reverse that finding. Therefore, the only claim that could be anticipated is claim 20, which claims a deoxygenation process comprising the steps of passing liquid containing oxygen and hydrazine through activated carbon, and then passing the liquid through ion exchange resins, including both strong acid cation and strong base anion exchange resins, to remove at least the dissolved contaminants. This is the exact process described by Dr. Martinola’s presentation of Figure 10. We therefore affirm the district court’s finding of anticipation of claim 20 of the ’411 patent as not clearly erroneous. II. Obviousness The district court also held that the inventions of claims 1, 3-13, 15, 17, 18, and 20 of the ’411 patent would have been obvious in light of the “combination of the Houghton process for deoxygenation with a mixed bed ion exchange resin to remove excess hydrazine and/or dissolved and/or undissolved carbon contaminants.” Id. at *37. We review the district court’s conclusion of obviousness de novo. We affirm the district court’s conclusion of obviousness with regard to claim 20, and reverse the holding that obviousness was proven by clear and convincing evidence with regard" }, { "docid": "15945579", "title": "", "text": "are for the utilization of hydrogen to reduce oxygen in water. We hold that the district court clearly erred in finding that the articles anticipate claims 1, 4, 7-12, and 20 of the ’411 patent. Each article is entitled “Saving Energy by Catalytic Reduction of Oxygen in Feedwa-ter.” Each article discusses methods to deoxygenate water, dividing the methods in use at the time of the article into physical processes (vacuum degassing at low temperatures and pressure degassing at high temperatures), and chemical processes (reduction with sulfite, hydrazine or hydrogen). The articles state that the physical processes (or thermal degassing) have been the most common method of deoxy-genating, as the chemical processes are expensive, slow to react at low temperatures, and contaminate the water by adding salts. The articles then state that the chemical process of deoxygenating water with hydrazine had been in use, but that the chemical process of deoxygenating water with hydrogen had not been, and concludes that the hydrogen process is preferable. At the end of the articles is a comparison of the thermal degassing method, the hydrazine method, and the hydrogen method. The articles state that: Precondition for the proper use of hydrazine is the pH-value of the water to be higher than 8.5, because only in this range the reaction with oxygen takes place with sufficient rate.... When applying activated carbon as a catalyst in the removal of oxygen with hydrazine at ambient temperatures it has to be taken into account that the carbon releases salts into the demineralized water. Martinola at 81 (1980); Martinola at 545-46 (1981). The articles then conclude that “[i]f we compare the final costs for all three processes ... we find that the method of oxygen reduction with hydrogen is much cheaper than the other methods. The required apparatus is also simple and needs virtually no maintenance.” Martinola at 81 (1980); Martinola at 546 (1981). This conclusion is followed by a discussion of how to use water deoxygenated by hydrogen in different industries, as illustrated by Figure 10. Only in that discussion is there a suggestion to follow the catalyst column" }, { "docid": "15945570", "title": "", "text": "’411 patent. Ecolochem asserted all three independent claims of the ’411 patent, and multiple dependent claims. The independent claims read as follows: 1. A deoxygenation process comprising a first step of contacting a liquid contacting [sic] dissolved oxygen and hydrazine with a bed of activated carbon to catalyze a reaction between said dissolved oxygen and a portion of said hydrazine, whereby an amount of dissolved carbon contaminants is added to said liquid, and a second step of removing said contaminants and said unreacted hydrazine that comprises passing said liquid through a strong acid cation exchange resin and a strong base anion exchange resin. 15. A deoxygenation process comprising a first step of contacting water containing dissolved oxygen and hydrazine with a bed of activated carbon to catalyze a reaction between said dissolved oxygen and a portion of said hydrazine, whereby an amount of dissolved and undissolved activated carbon contaminants are added to said water, a second step of removing said dissolved contaminants and said unreacted hydrazine by passing said water through a strong acid cation exchange resin and a strong base anion exchange resin, said water being at a temperature above the freezing point of water and below a temperature that would damage said resins, removing said undissolved contaminants by passing said water through a filter whereby said undissolved contaminants are filtered from said water, and a fourth step of circulating said water in a power generating apparatus after said removing step. 20. A deoxygenation process comprising a first step of contacting a liquid containing dissolved oxygen and hydrazine with a bed of activated carbon to catalyze a reaction between said dissolved oxygen and said hydrazine, whereby an amount of dissolved activated carbon contaminants is added to said liquid, and a second step of removing at least said dissolved contaminants by passing said liquid through a strong acid cation exchange resin and a strong base anion exchange resin. Asserted claims 3-13 depend on claim 1. Asserted claims 17 and 18 depend on claim 15. Claim 20 is independent, and no claims dependent thereon are asserted. All asserted claims in suit" }, { "docid": "22188192", "title": "", "text": "a rule of law that a declaratory plaintiff has a burden of showing in every case that its product or process is “the same” as that patented. It misinterprets precedent to convert a fact finding that with others supported a decision into a universal requirement for all future cases. In Super Products, for example, the court held that plaintiff’s preparation for producing a product “similar to that described” in the patent and “potentially infringing” was sufficient to satisfy the plaintiff’s conduct prong of the test for reasonable apprehension. Id. at 753, 192 USPQ at 421; see International Medical Prosthetics Research Assocs., Inc. v. Gore Enter. Holdings, Inc., 787 F.2d 572, 575, 229 USPQ 278, 280 (Fed.Cir.1986) (enough to admit process “might at trial be found an infringement”) (emphasis in original). Moreover, Arrowhead did establish unequivocally that its process was sufficiently similar to warrant apprehension of suit by Ecolochem. Arrowhead submitted an unchallenged affidavit of one Crabtree, describing Arrowhead’s process as including the steps of adding hydrazine to water, passing the resulting liquid through activated carbon, and deionizing the liquid through ion exchange. Claim 1 of the ’492 patent reads: A deoxygenation process comprising a first step of adding hydrazine to a liquid containing dissolved oxygen, a second step of passing said liquid through a bed of activated carbon to catalyze a reaction between said dissolved oxygen and said hydrazine whereby an amount of dissolved carbon contaminants are added to said liquid, and a third step of passing said liquid through an ion exchange resin selected from the group consisting of mixed bed resin and cation resin to remove at least said dissolved contaminants. Ecolochem’s sole attack on the Crabtree affidavit is that it fails to establish that “Arrowhead is practicing the process of the patent.” That attack is not only immaterial, as above indicated, but is directly opposed to Ecolochem’s admission, later in its brief, that a declaratory judgment plaintiff need only show use or preparation for use of a process that “might at trial be found to be an infringement.” Indeed, a dismissal for lack of jurisdiction would not" }, { "docid": "20015138", "title": "", "text": "of the ’492 Patent, was introduced to meet this need. The ’492 Patent is a combination of several well known processes. The first step is the addition of hydrazine (N2H4) to the water to be deoxygenated. The hydrazine reacts with the dissolved oxygen to yield water and nitrogen gas. Because this reaction does not proceed quickly at low temperatures, the ’492 Patent includes a second step of passing the water and hydrazine through a bed of activated carbon. The activated carbon catalyzes the hydrazine-oxygen reaction allowing it to proceed quickly at low temperatures. This two-step process was well known in the literature. See Houghton & Cuerdon, The Use of Active Carbon with Hydrazine in the Treatment of Boiler Feed Water, International Water Conference, Bournemouth, England pp. 54-58 (1957) (Def. Ex. 16) (throughout the record the parties refer to these first two steps of the ’492 Patent as the Houghton process). The inventors of the ’492 Patent, Ecolochem employees, analyzed the effluent from the Houghton process and determined that impurities were introduced by the process. Further analysis revealed a variety of ionic contaminants which the inventors concluded leached from the activated carbon. Ecolochem experimented with a mixed bed ion exchange resin downstream from the Houghton process in an effort to remove the ionic contaminants. The addition of the mixed bed resin achieved the desired result of removing the ionic contaminants. Ecolochem then tested the process on a larger commercial scale and decided to implement the process for commercial use. The entire apparatus was designed to be installed on a semi tractor-trailer so the process would be mobile and could be transported between cities as Ecolochem’s deoxygenation services were needed. Ecolochem first used the process commercially in the summer of 1983, under a secrecy agreement, at Southern California Edison’s San Onofre nuclear generating facility. Southern California Edison was very pleased with the quality of water supplied by Ecolochem’s process, and it proved to be both commercially feasible and profitable. On December 16,1983, the inventors filed a patent application on the deoxygenation process. After being initially rejected, the ’492 Patent was awarded on" }, { "docid": "20015137", "title": "", "text": "is for a process to remove dissolved oxygen (O2) from water. Water that is exposed to air becomes satu rated with oxygen containing concentrations measured in parts per million. The removal of this dissolved oxygen is important to the electric power generating industry because the dissolved oxygen in the water used to run the generating turbines and circulated throughout the system promotes corrosion in the system. It is also important that other contaminants (such as the minerals found in hard water) not be introduced into the system as they will also have a deleterious effect. As early as 1955 dissolved oxygen concentrations as low as five parts per billion were recommended. In the day-to-day operation of the power plant the feedwater is typically deoxygenated by a deaerating feedwater heater. This device, however, requires the use of steam which must be drawn off the system. Consequently, when the plant is initially starting up, or is restarting after a shutdown for maintenance, some other method of deoxygenating the feedwater is necessary. Ecolochem’s process, which is the subject of the ’492 Patent, was introduced to meet this need. The ’492 Patent is a combination of several well known processes. The first step is the addition of hydrazine (N2H4) to the water to be deoxygenated. The hydrazine reacts with the dissolved oxygen to yield water and nitrogen gas. Because this reaction does not proceed quickly at low temperatures, the ’492 Patent includes a second step of passing the water and hydrazine through a bed of activated carbon. The activated carbon catalyzes the hydrazine-oxygen reaction allowing it to proceed quickly at low temperatures. This two-step process was well known in the literature. See Houghton & Cuerdon, The Use of Active Carbon with Hydrazine in the Treatment of Boiler Feed Water, International Water Conference, Bournemouth, England pp. 54-58 (1957) (Def. Ex. 16) (throughout the record the parties refer to these first two steps of the ’492 Patent as the Houghton process). The inventors of the ’492 Patent, Ecolochem employees, analyzed the effluent from the Houghton process and determined that impurities were introduced by the process. Further" }, { "docid": "15945571", "title": "", "text": "exchange resin and a strong base anion exchange resin, said water being at a temperature above the freezing point of water and below a temperature that would damage said resins, removing said undissolved contaminants by passing said water through a filter whereby said undissolved contaminants are filtered from said water, and a fourth step of circulating said water in a power generating apparatus after said removing step. 20. A deoxygenation process comprising a first step of contacting a liquid containing dissolved oxygen and hydrazine with a bed of activated carbon to catalyze a reaction between said dissolved oxygen and said hydrazine, whereby an amount of dissolved activated carbon contaminants is added to said liquid, and a second step of removing at least said dissolved contaminants by passing said liquid through a strong acid cation exchange resin and a strong base anion exchange resin. Asserted claims 3-13 depend on claim 1. Asserted claims 17 and 18 depend on claim 15. Claim 20 is independent, and no claims dependent thereon are asserted. All asserted claims in suit recite a deox-ygenation process for removing dissolved oxygen from a liquid. In representative claim 20, liquid containing oxygen and hydrazine passes through activated carbon, thus catalyzing a reaction between the oxygen and hydrazine, whereby an amount of dissolved carbon contaminants falls out of the reaction and is added to the liquid. Then the liquid passes through ion exchange resins, including both strong acid cation and strong base anion exchange resins, to remove at least the dissolved con taminants. The invention of independent claim 1 is similar, except that the resins also remove any unreacted hydrazine. Claims 3 through 6 and claims 10 through 13 require further steps in the deoxygenation process, e.g., filtration. Claim 7 requires the temperature of the liquid to be above the liquid’s freezing point, and below the temperature at which the resins would be damaged. Claim 8 requires the liquid to be water. Claim 9 requires that the liquid of claim 1 be water and that the water be circulated in a power generating apparatus. Independent claim 15 recites a combination" }, { "docid": "22188193", "title": "", "text": "and deionizing the liquid through ion exchange. Claim 1 of the ’492 patent reads: A deoxygenation process comprising a first step of adding hydrazine to a liquid containing dissolved oxygen, a second step of passing said liquid through a bed of activated carbon to catalyze a reaction between said dissolved oxygen and said hydrazine whereby an amount of dissolved carbon contaminants are added to said liquid, and a third step of passing said liquid through an ion exchange resin selected from the group consisting of mixed bed resin and cation resin to remove at least said dissolved contaminants. Ecolochem’s sole attack on the Crabtree affidavit is that it fails to establish that “Arrowhead is practicing the process of the patent.” That attack is not only immaterial, as above indicated, but is directly opposed to Ecolochem’s admission, later in its brief, that a declaratory judgment plaintiff need only show use or preparation for use of a process that “might at trial be found to be an infringement.” Indeed, a dismissal for lack of jurisdiction would not have been required if Arrowhead had stated in its complaint its belief that its process could not possibly be an infringement. International Medical Prosthetics, 787 F.2d at 575, 229 USPQ at 280. Ecolochem’s repeated assertions that Arrowhead did not disclose enough about its process comes with poor grace. Ecolochem knew enough about Arrowhead’s process to tell Arrowhead it “had reason to believe” it was contemplating or using the patented process, and to tell the Arkansas court that (in Ecolochem’s considered opinion) Arrowhead’s process is an infringement. Moreover, Ecolochem has nowhere specified that it does not interpret its patent as infringed by the three-step process set out in the Crabtree affidavit, either directly or under the doctrine of equivalents. Lastly, in respect of plaintiff's conduct, we are not dealing here with a mere plan or wish of Arrowhead to practice its process. It is doing precisely that. The high cost of litigation makes the bringing of a declaratory judgment action a step not lightly undertaken, yet defendant’s conduct has obviously created a most reasonable and compelled" }, { "docid": "15945572", "title": "", "text": "recite a deox-ygenation process for removing dissolved oxygen from a liquid. In representative claim 20, liquid containing oxygen and hydrazine passes through activated carbon, thus catalyzing a reaction between the oxygen and hydrazine, whereby an amount of dissolved carbon contaminants falls out of the reaction and is added to the liquid. Then the liquid passes through ion exchange resins, including both strong acid cation and strong base anion exchange resins, to remove at least the dissolved con taminants. The invention of independent claim 1 is similar, except that the resins also remove any unreacted hydrazine. Claims 3 through 6 and claims 10 through 13 require further steps in the deoxygenation process, e.g., filtration. Claim 7 requires the temperature of the liquid to be above the liquid’s freezing point, and below the temperature at which the resins would be damaged. Claim 8 requires the liquid to be water. Claim 9 requires that the liquid of claim 1 be water and that the water be circulated in a power generating apparatus. Independent claim 15 recites a combination similar to claim 9, and claims 17 and 18 add hydrazine and demineralize the water. The ’411 patent issued in 1989 from a continuation of an application which issued as the ’492 patent on December 5, 1985. Both the ’411 and ’492 patents are entitled “Deoxygenation Process.” At the outset of this litigation, Ecoloehem asserted claims under both the ’492 and ’411 patents. On September 1, 1994, Judge Gadbois, the original trial judge, granted-in-part and denied-in-part Edison’s motion for summary judgment seeking to invalidate various asserted claims of Ecolochem’s patents. See Ecolochem, Inc. v. Southern Cal. Edison Co., 863 F.Supp. 1165 (C.D.Cal.1994). Judge Gadbois held claims 1, 2, and 5-10 of the ’492 patent and claims 20 and 21 of the ’411 patent to be invalid as either obvious and/or anticipated. Ecoloehem appealed the partial summary judgment as to claims 1, 2, 5-7, and 10 of the ’492 patent and claim 20 of the ’411 patent. Ecoloehem did not appeal the findings of invalidity of claims 8 and 9 of the ’492 patent or claim" }, { "docid": "15945569", "title": "", "text": "been both demineralized and deoxygenated. The Electrical Power Research Institute (“EPRI”), a research organization for the power industry, published new guidelines in 1982, recommending the use of deoxy-genated water in PWRs. These guidelines were soon implemented throughout the utility industry. In direct response to these guidelines, Edison asked Ecolochem to deoxygenate the make-up water used in SONGS. Shortly thereafter, Ecolochem began developing the patented process at issue in the instant case. Once construction of the HFMUD was finished, Edison had no further need for Ecolochem’s services, being able to now produce, on its own, sufficient, high purity, deoxygenated make-up water by passing the water through the HFMUD. The HFMUD passes the make-up water through a strong acid cation resin bed, a predominantly weak base anion resin bed, an activated carbon bed, a second strong acid cation resin bed, a strong base anion bed, and, finally, a vacuum deareator. This process removes suspended, undissolved solids and dissolved impurities, including salt, mineral ions, organic chemicals, and oxygen. Ecolochem alleged that Edison’s process, as described above, infringes its ’411 patent. Ecolochem asserted all three independent claims of the ’411 patent, and multiple dependent claims. The independent claims read as follows: 1. A deoxygenation process comprising a first step of contacting a liquid contacting [sic] dissolved oxygen and hydrazine with a bed of activated carbon to catalyze a reaction between said dissolved oxygen and a portion of said hydrazine, whereby an amount of dissolved carbon contaminants is added to said liquid, and a second step of removing said contaminants and said unreacted hydrazine that comprises passing said liquid through a strong acid cation exchange resin and a strong base anion exchange resin. 15. A deoxygenation process comprising a first step of contacting water containing dissolved oxygen and hydrazine with a bed of activated carbon to catalyze a reaction between said dissolved oxygen and a portion of said hydrazine, whereby an amount of dissolved and undissolved activated carbon contaminants are added to said water, a second step of removing said dissolved contaminants and said unreacted hydrazine by passing said water through a strong acid cation" }, { "docid": "15945624", "title": "", "text": "the secondary consideration evidence is but one of several factors, all of which must be assessed in determining obviousness. See Graham, 383 U.S. at 17-18, 86 S.Ct. 684. Given the absence of any proof of a motivation to combine, we hold that the remaining claims were not proven obvious by clear and convincing evidence in light of the prior art. CONCLUSION For the reasons stated above, we affirm the district court’s holding that it was proven by clear and convincing evidence that the invention of claim 20 would have been obvious and was anticipated, but reverse the district court’s holdings that claims 1, 3-13, 15, 17, and 18 were proven invalid either as anticipated and/or obvious. We remand this case for award of damages, consistent with the district court’s finding of willful infringement which stands. The decision, therefore, is AFFIRMED-IN-PART, REVERSED-IN-PART, and REMANDED. COSTS Defendant shall pay costs. . Cation: An ion having a positive charge. See Webster’s Ninth New Collegiate Dictionary 216 (1990). . Anion: An ion having a negative charge. See Webster’s Ninth New Collegiate Dictionary 87 (1990). .A calion/anion exchange resin is a resin which, when brought in contact with liquid containing cation/anion contaminants, removes them. . On March 9, 2000, the Senate confirmed the nomination of Judge Richard A. Paez to the United States Court of Appeals for the Ninth Circuit. . The International Water Conference is an annual convention focusing on water treatment issues. . A mixed bed is a resin bed which, when brought in contact with liquid containing cation and/or anion contaminants, removes - them. In other words, a resin bed containing a mixture of cation and anion resins. . The '411 specification explains further that \"[i]n the prior art deoxygenaton [sic] processes, hydrazine has been used as a strong reducing agent to prevent corrosion and other problems associated with oxygenated water.” '411 pat., col. 1, 11. 27-30. A review of the prior art indicates that small amounts of hydrazine were used in the final stage of deoxygenation, after the thermal degassing or other chemical process had been used, to remove the last" }, { "docid": "15945625", "title": "", "text": "New Collegiate Dictionary 87 (1990). .A calion/anion exchange resin is a resin which, when brought in contact with liquid containing cation/anion contaminants, removes them. . On March 9, 2000, the Senate confirmed the nomination of Judge Richard A. Paez to the United States Court of Appeals for the Ninth Circuit. . The International Water Conference is an annual convention focusing on water treatment issues. . A mixed bed is a resin bed which, when brought in contact with liquid containing cation and/or anion contaminants, removes - them. In other words, a resin bed containing a mixture of cation and anion resins. . The '411 specification explains further that \"[i]n the prior art deoxygenaton [sic] processes, hydrazine has been used as a strong reducing agent to prevent corrosion and other problems associated with oxygenated water.” '411 pat., col. 1, 11. 27-30. A review of the prior art indicates that small amounts of hydrazine were used in the final stage of deoxygenation, after the thermal degassing or other chemical process had been used, to remove the last traces of oxygen, while keeping to a minimum the contaminate byproducts of the hydrazine process. . Dr. Martinola testified that, during his presentation, he described his paper as showing: [T]hat you can apply activated carbon as a catalyst and it will remove oxygen with hydrazine; but it has to be taken into account that the carbon releases salts in the demineralized water, and, afterwards, in Figure 10, there is shown a system with a catalyst column and a mixed bed. Martinola Dep. at 18:6-12. . William Miller, one of the inventors of the deoxygenation process described in the '411 patent, testified that he attended the International Water Conference in 1982 \"with the intention of finding alternative deoxygenation processes, if there were any.” Miller Decl. ¶ 19 (Oct. 28, 1997), J.A. at 931. By alternative, Mr. Miller was referring to processes other than deoxygenation through the use of a vacuum degasifier. While at the conference, Mr. Miller spoke to an Ecolochem area sales manager, John Pugsley. Mr. Pugsley worked for the Florida Power and Light Company" }, { "docid": "15945587", "title": "", "text": "20, which claims a deoxygenation process comprising the steps of passing liquid containing oxygen and hydrazine through activated carbon, and then passing the liquid through ion exchange resins, including both strong acid cation and strong base anion exchange resins, to remove at least the dissolved contaminants. This is the exact process described by Dr. Martinola’s presentation of Figure 10. We therefore affirm the district court’s finding of anticipation of claim 20 of the ’411 patent as not clearly erroneous. II. Obviousness The district court also held that the inventions of claims 1, 3-13, 15, 17, 18, and 20 of the ’411 patent would have been obvious in light of the “combination of the Houghton process for deoxygenation with a mixed bed ion exchange resin to remove excess hydrazine and/or dissolved and/or undissolved carbon contaminants.” Id. at *37. We review the district court’s conclusion of obviousness de novo. We affirm the district court’s conclusion of obviousness with regard to claim 20, and reverse the holding that obviousness was proven by clear and convincing evidence with regard to all other claims at issue. A. The Houghton Process as a “Blueprint” The district court essentially found that the most innovative aspect of Ecolochem’s process was its “[ujnearthing [of] long-neglected art,” holding that “Ecolochem’s good fortune in obtaining the Houghton reference just as the EPRI guidelines created increased attention in the PWR industry to the problem of ambient temperature deoxygenation does not entitle Ecolochem to patent protection.” Id. at *33. Houghton was the co-author of a paper on deoxygenation by carbon catalysis of the reaction between hydrazine and dissolved oxygen, entitled “The Use of Active Carbon With Hydrazine in the Treatment of Boiler Feed Water” (“the Houghton article”). The Houghton article was presented at the 1957 International Water Conference at Bournemouth, England and brought to the attention of Ecolochem at the 1982 International Water Conference. The Houghton article peaked the interest of Ecolochem, and its scientists began performing experiments to determine if the results predicted in Houghton’s paper could be replicated in a laboratory setting. Ecolochem’s scientists were skeptical, because they “had understood that" }, { "docid": "15945626", "title": "", "text": "traces of oxygen, while keeping to a minimum the contaminate byproducts of the hydrazine process. . Dr. Martinola testified that, during his presentation, he described his paper as showing: [T]hat you can apply activated carbon as a catalyst and it will remove oxygen with hydrazine; but it has to be taken into account that the carbon releases salts in the demineralized water, and, afterwards, in Figure 10, there is shown a system with a catalyst column and a mixed bed. Martinola Dep. at 18:6-12. . William Miller, one of the inventors of the deoxygenation process described in the '411 patent, testified that he attended the International Water Conference in 1982 \"with the intention of finding alternative deoxygenation processes, if there were any.” Miller Decl. ¶ 19 (Oct. 28, 1997), J.A. at 931. By alternative, Mr. Miller was referring to processes other than deoxygenation through the use of a vacuum degasifier. While at the conference, Mr. Miller spoke to an Ecolochem area sales manager, John Pugsley. Mr. Pugsley worked for the Florida Power and Light Company before he came to work for Ecolochem and he recalled that someone at Florida Power and Light was doing some work on deoxygenation involving carbon. As a result of that conversation, Mr. Pugsley arranged for someone at Florida Power and Light to send me [the Houghton article]. Id. . The 1980 article states: A large number of chemical compounds can be used for reducing the elementary oxygen in water.... Until now, however, they have merely been used for the residual degassing that follows on from thermal processes. The reasons for this are the high costs involved, the slowness to react at low temperatures and the additional introduction of salts into the water. For the elimination of oxygen in boiler feedwater and hot water, use has been made for a long time now of hydrazine in the form of hydrazine hydrate.. . A particularly simple process, which takes place in particularly well-known stages and is also energy-saving, is the reaction between the dissolved oxygen and hydrogen gas introduced into the water.... If we compare the final" }, { "docid": "20015143", "title": "", "text": "palladium/hydrogen catalysis — and not the hydrazine process which is discussed in a separate section. This conclusion is buttressed by the fact that the palladium/hydrogen process may also release ionic impurities into the effluent, see id. at 79 (“traces of chlorides or other ions may be released”), thus necessitating a downstream ion exchange resin when high purity deoxygenated water is required. Nothing in the Martinola reference expressly teaches the use of a mixed bed ion exchange resin following the hydrazine/carbon process. Accordingly, the court finds that the Martinola article is not anticipatory. See Akzo N.V. v. U.S. International Trade Commission, 808 F.2d 1471, 1479 (Fed.Cir.1986) (anticipation is a question of fact), cert. denied, — U.S. -, 107 S.Ct. 2490, 96 L.Ed.2d 382 (1987). 2. The Bechtel Publication. Mobile Water also argues that a tome put out by the Bechtel Group in 1982 anticipates the claims of the ’492 Patent. Bechtel Group, Inc., Guide to the Design of Secondary Systems and Their Components to Minimize Oxygen Induced Corrosion (1982) (Def. Ex. No. 4). Unremarkably, the Bechtel publication discloses the well-known process of catalyzing the oxygen-hydrazine reaction with activated carbon. Id. at 4-18 & 4-29. Thus, the inquiry is whether the publication teaches that mixed bed ion exchange should follow the carbon catalyzed reaction to remove ionic impurities leached from the activated carbon. The Bechtel publication does recommend testing if activated carbon is utilized as a catalyst because some contaminants may be released due to leaching. Id. at 4-30. No reference is made, however, to the nature of the contaminants or how they should be removed. The Bechtel publication does refer to the use of ion-exchange resins in the secondary system of the power generating plant. Id. at 4-24. The discussion at this point, however, is concerned with the effect such ion-exchanges would have on hydrazine levels in the system, and not the removal of contaminants released by the activated carbon. The court finds that the Bechtel publication does not anticipate the ’492 Patent. 3. The Russian Reference. The final writing Mobile Water alleges to be anticipatory is one authored by two" } ]

[ { "docid": "22608700", "title": "", "text": "in the state courts. See Brown v. Felsen, 442 U. S., at 129; 1A Collier on Bankruptcy ¶ 17.28, pp. 1726-1727 (14th ed. 1978). The state courts therefore determined the applicable burden of proof, often applying the same standard of proof that governed the underlying claim. The 1970 amendments took jurisdiction over certain dischargeability exceptions, including the exceptions for fraud, away from the state courts and vested jurisdiction exclusively in the bankruptcy courts. See Brown v. Felsen, 442 U. S., at 135-136; S. Rep. No. 91-1173, pp. 2-3 (1970); H. R. Rep. No. 91-1502, p. 1 (1970). Our prior cases have suggested, but have not formally held, that the principles of collateral estoppel apply in bankruptcy proceedings under the current Bankruptcy Act. See, e. g., Kelly v. Robinson, 479 U. S. 36, 48, n. 8 (1986); Brown v. Felsen, 442 U. S., at 139, n. 10. Cf. Reiser v. Woodruff, 327 U. S. 726, 736 (1946) (applying collateral estoppel under an earlier version of the bankruptcy laws). Virtually every Court of Appeals has concluded that collateral estoppel is applicable in discharge exception proceedings. See In re Braen, 900 F. 2d, at 630; Combs v. Richardson, 838 F. 2d, at 115; Klingman v. Levinson, 831 F. 2d 1292, 1295 (CA7 1987); In re Shuler, 722 F. 2d 1253, 1256 (CA5), cert. denied sub nom. Harold V. Simpson & Co. v. Shuler, 469 U. S. 817 (1984); Goss v. Goss, 722 F. 2d 599, 604 (CA10 1983); Lovell v. Mixon, 719 F. 2d 1373, 1376 (CA8 1983); Spilman v. Harley, 656 F. 2d 224, 228 (CA6 1981). Cf. In re Rahm, 641 F. 2d 755, 757 (CA9) (prior judgment establishes only a prima facie ease of nondischargeability), cert, denied sub nom. Gregg v. Rahm, 454 U. S. 860 (1981). We now clarify that collateral estoppel principles do indeed apply in discharge exception proceedings pursuant to § 523(a). This indifference would not be shared, however, by a creditor who either did not try, or tried unsuccessfully, to prove fraud in a jurisdiction requiring clear and convincing evidence but who nonetheless established a valid" } ]

[ { "docid": "23641677", "title": "", "text": "ENTRY OF SUMMARY JUDGMENT UPON COLLATERAL ESTOPPEL GROUNDS The Bankruptcy Court entered summary judgment for the U.S. Life because the court held that the state court judgment collaterally estopped the defendant from contesting whether he embezzled funds from U.S. Life. The state court held that the defendant “willfully and maliciously embezzled funds” from U.S. Life. Under 11 U.S.C. § 523(a)(4), a bankruptcy discharge “does not discharge an individual debtor from any debt ... for ... embezzlement.” (Emphasis supplied). After examining the full state court record, the Bankruptcy Court held that the state proceeding had established facts sufficient to establish that Dohm had embezzled funds and therefore Section 523(a)(4) prevented Dohm from discharging the debt. As initial matter, this court notes that the recent Supreme Court opinion in Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), did not prevent the Bankruptcy Court from applying collateral estoppel principles to a dischargeability case. In Brown v. Felsen, the Court held that the doctrine of res judicata was not applicable to discharge cases. The Court held, additionally, however, that the Bankruptcy Court may apply collateral estoppel if the state court record warrants it. The Court stated: This case concerns res judicata only, and not the narrower principle of collateral , estoppel. Whereas, res judicata forecloses all that might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit.... If, in the course of adjudicating a state law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the Bankruptcy Court. 442 U.S. at 139 n.10, 99 S.Ct. at 2213 n.10. Post Brown v. Felsen decisions have held that the Bankruptcy Court may apply collateral estoppel to discharge cases. Spilman v. Harley, 656 F.2d 224, 227 (6th Cir. 1981); Matter of Ross, 602 F.2d 604, 608-08 (3d Cir. 1979); In re Greenblatt, 8 B.R. 994 (Bkrtcy.E.D.N.Y.1981). Moreover, collateral estoppel has been used to support the award of" }, { "docid": "16390227", "title": "", "text": "court further specified that [i]f a state court should determine factual issues using standards identical to those in dischargeability proceedings, then collateral estoppel — if held to be applicable and in the absence of countervailing statutory policy — would bar relit-igation of those issues in the bankruptcy court. This court holds that where all the requirements of collateral estoppel are met, collateral estoppel should preclude relitigation of factual issues. Id. at 227-28. See also Combs v. Richardson, 838 F.2d 112 (4th Cir.1988) (collateral estoppel applies to bar Debtor’s relitigation in a dischargeability proceeding if an examination of the record of the earlier proceeding satisfies the bankruptcy court that the issue was raised and litigated and that resolution of the issue was necessary to the verdict in the prior case); In re Pitner, 696 F.2d 447 (6th Cir.1982) (collateral estoppel applies if the state court record reflects a finding that the issue of willful and malicious action on the part of the Debtor was litigated in the state court and was necessary to the state court decision); In re McQueen, 102 B.R. 120 (Bkrtcy.S.D.Ohio 1989) (collateral estoppel is to be given effect if the issue sought to be precluded is identical to the one in the prior action; the issue was actually litigated in the prior action; the prior determination resulted in a valid and final judgment; and the determination of facts for which preclusion is sought was necessary to the outcome). At the outset, the court notes that pursuant to plaintiffs unrefuted allegation,Debtor appealed the state court judgment, which appeal was dismissed. Motion for Summary Judgment at 6. Thus, the state court judgment represents a valid and final judgment which may be granted preclusive effect. Federal bankruptcy law controls who is a fiduciary for purposes of § 523(a)(4). To be a fiduciary for dischargeability purposes, the Debtor must be a trustee either under an express or “technical” trust. The trust relationship must exist prior to the act creating the debt. State law is relevant in determining whether a trust relationship exists. State statutes may create a particular relationship by expressly" }, { "docid": "9326580", "title": "", "text": "the issue warrants some discussion before the Court addresses the specific objections raised by Kwiat. A. Res Judicata, Collateral Estoppel, and Bankruptcy The Supreme Court in Brown v. Felsen, 442 U.S. 127, 138-39, 99 S.Ct. 2205, 2212-13, 60 L.Ed.2d 767 (1979) held that a bankruptcy court was not foreclosed by res judicata from determining, independent of any prior state court proceedings, the dis-chargeability of a debtor’s debt under federal bankruptcy law. The Supreme Court noted, however, that the issue in Brown Brown, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10. Not surprisingly, litigants have not remained static. The weight of authority has approved of a bankruptcy court’s invocation of collateral estoppel to bar relitigation of issues decided in a prior state suit. See, e.g., Klingman v. Levinson, 831 F.2d 1292, 1295 (7th Cir.1987) (“Where a state court determines factual questions using the same standards as the bankruptcy court would use, collateral es-toppel should be applied to promote judicial economy by encouraging the parties to present their strongest arguments”); In re Shuler, 722 F.2d 1253, 1255-56 (5th Cir.1984) (noting that the bankruptcy court retains exclusive jurisdiction to determine the ultimate question of dischargeability); Spilman v. Harley, 656 F.2d 224, 227-28 (6th Cir.1981); In re Ross, 602 F.2d 604, 607 (3d Cir.1979); cf. In re Rahm, 641 F.2d 755, 757 (9th Cir.1981), cert. denied, 454 U.S. 860, 102 S.Ct. 313, 70 L.Ed.2d 157 (1981) (prior state court judgment has no collateral estoppel effect, but may establish a prima facie case of nondischargeability). concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit.... [W]e need not and therefore do not decide whether a bankruptcy court adjudicating a § [523] question should give collateral-estoppel effect to a prior state judgment. The First Circuit Court of Appeals did not express dissatisfaction, but neither did it adopt the application of the use of collateral estoppel in Commonwealth of Massachusetts v. Hale, 618" }, { "docid": "10235417", "title": "", "text": "prevents the debtor from later re-litigating, for example, the issue of fraud in the federal bankruptcy court. In contrast, the debtor essentially asserts that the issues surrounding the dischargeability of the debt were not fully, actually, and necessarily litigated in the California lawsuit. It is well settled that the doctrine of res judicata or claim preclusion is inapplicable in bankruptcy dischargeability proceedings. Brown v. Felsen, 442 U.S. 127, 139, 99 S.Ct. 2205, 2213, 60 L.Ed.2d 767 (1979). It now is equally clear that the doctrine of collateral estoppel or issue preclusion is applicable in dischargeability proceedings if certain requirements are satisfied. See Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). The Sixth Circuit Court of Appeals has squarely addressed the issue of collateral estoppel in bankruptcy dischargeability proceedings and set forth the requirements for application of the doctrine in this Circuit. See, for example, Spilman v. Harley, 656 F.2d 224 (6th Cir.1981), and Wheeler v. Laudani, 783 F.2d 610 (6th Cir.1986). Spilman succinctly states that “[cjollateral estoppel requires that the precise issue in the later proceedings have been raised in the prior proceeding, that the issue was actually litigated, and that the determination was necessary to the outcome.” 656 F.2d at 228. The courts within this Circuit have reached different results in applying the doctrine of collateral estoppel to similar background facts. The difficulty in applying the doctrine of collateral estoppel reaches its zenith in situations, such as the instant proceeding, where the underlying prepetition judgment is a default judgment and the defendant later files a bankruptcy case seeking a fresh financial start. See 11 U.S.C. § 727(a)(1); Fed.R.Bankr.P. 4004(c). Although Spilman did not involve a default judgment, many courts seemingly have seized on one statement contained in its discussion of the “actually litigated” requirement. The Sixth Circuit stated that “[i]f the important issues were not actually litigated in the prior proceeding, as is the case with a default judgment, then collateral estoppel does not bar relitigation in the bankruptcy court.” Id. (emphasis added). This statement in Spilman has been called into question in a" }, { "docid": "18607288", "title": "", "text": "in the prior case. II. A brief review of the principles of collateral estoppel as they apply to bankruptcy proceedings is in order. Collateral estoppel bars relitigation of an issue previously decided if the party against whom the prior decision is asserted had “a ‘full and fair opportunity’ to litigate that issue in the earlier case.” Allen v. McCurry, 449 U.S. 90, 94-95, 101 S.Ct. 411, 414-15, 66 L.Ed.2d 308 (1980). Collateral estoppel treats as final only those issues “actually and necessarily determined” in the prior suit. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). The 1970 amendments to the Bankruptcy Act grant exclusive jurisdiction to the bankruptcy courts to determine certain questions of dischargeability now contained in 11 U.S.C. 523(c). Brown v. Felsen, 442 U.S. at 129-30, 99 S.Ct. at 2208-09. In Brown v. Felsen, the Supreme Court held that federal policies underlying the Bankruptcy Act, including the policy that dis- chargeability questions be resolved only after the “fullest possible inquiry,” required that prior state court judgments not be given res judicata effect to preclude litigation of dischargeability issues which could have been, but were not, litigated in the earlier proceeding. Id. at 138-39, 99 S.Ct. at 2208-09; see also Spilman v. Harley, 656 F.2d 224, 226 (6th Cir.1981) reh’g denied. The Court reserved the question of the collateral estoppel or issue preclusive effect of “questions actually and necessarily decided in a prior suit.” Brown v. Felsen, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10. It noted, however, that “in the absence of countervailing statutory policy,” collateral estoppel would bar relitigation of those issues in bankruptcy court. Id. The application of collateral estoppel to preclude relitigation of questions actually litigated and necessarily decided by a jury in an earlier diversity action is consistent with the policy of the bankruptcy statute and the Supreme Court’s decision in Brown v. Felsen. As noted by the Sixth Circuit in Spilman v. Harley, 656 F.2d 224: The determination, whether or not a certain debt is dischargeable is a legal conclusion based" }, { "docid": "6905116", "title": "", "text": "file a tax return and failure to pay a tax fall within the definition in § 523(a)(1)(C) of a willful attempt to evade or defeat a tax liability.” In re Toti, 24 F.3d at 809. The Court further stated that “[w]e believe that a plain reading of § 523(a)(1)(C) includes both acts of commission and acts of omission.” Id. This is the law of the Sixth Circuit that guides this Court. Nondischargeability under § 523(a)(1)(C) may be demonstrated with a preponderance of evidence. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991). COLLATERAL ESTOPPEL It is well settled “that collateral estoppel principles ... apply in discharge exception proceedings pursuant to § 523(a).” Grogan v. Garner, 498 U.S. at 284, n. 11, 111 S.Ct. at 658, n. 11. Collateral estoppel, or issue preclusion, bars relitigation of particular issues and is typically applicable when it is found that “the precise issue in the later proceedings [has] been raised in the prior proceeding, that the issue was actually litigated, and that the determination was necessary to the outcome.” Spilman v. Harley, 656 F.2d 224, 228 (6th Cir.1981). In determining whether the decisive issue was actually litigated and necessary to the prior decision, the bankruptcy court should look at the entire record of the prior proceeding and not just at the prior judgment. Id. Because of this requirement of actual. litigation of the identical element, collateral estoppel rarely applies to default judgments awarded in a nonbankruptcy forum so as to make those default judgments nondisehargeable. See Wheeler v. Laudani, 783 F.2d 610 (6th Cir.1986); Spilman v. Harley, 656 F.2d 224 (6th Cir.1981); Bay Area Factors v. Calvert (In re Calvert), 177 B.R. 583 (Bankr.W.D.Tenn.1995). This Court previously refused to give collateral estoppel effect to a default judgment where there was no showing that the relevant elements of § 523(a) “were actually litigated and necessary to the prior judgment.” Pizza Palace, Inc. v. Stiles (In re Stiles), 118 B.R. 81, 86 (Bankr.W.D.Tenn.1990). Compare Harris v. Byard (In re Byard), 47 B.R. 700, 12 Bankr.Ct.Dec. 1069, 12 CBC 2d 387," }, { "docid": "5953900", "title": "", "text": "of Limitations. The Court overrules the motion for summary judgment on this point. Res Judicata Collateral Estoppel The debtor alternatively alleges that the plaintiff is barred by the doctrines of res judicata and collateral estoppel from relit-igating identical issues determined at the court martial proceeding. The debtors raise the question of the preclusive effect of a court martial ruling in a bankruptcy dischargeability proceeding. Res judicata or claim preclusion provides that once there has been a final judgment on the merits of a cause of action, the parties are forever barred from relitigating any issues in a subsequent suit that were or could have been litigated in the first suit. Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979). Collateral es-toppel or issue preclusion forecloses the relitigation of only those issues that were expressly decided in and necessary to the determination of a prior suit. Id. The Supreme Court has rejected giving a state court judgment res judicata effect to bar a bankruptcy court’s examination of a debt’s dischargeability under the former § 17, now § 523 of the Bankruptcy Code. Brown v. Felson, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). However, the Court in Brown expressly declined to address the issue of collateral estoppel and indicated that issue preclusion would be proper in certain circumstances. A leading case addressing the use of collateral estop-pel in bankruptcy dischargeability proceedings is Spilman v. Harley, 656 F.2d 224 (6th Cir.1981). In Spilman, the Court established three criteria which must be proven in order for collateral estoppel to apply: (1) the precise issue in the later proceeding must have been raised in the prior proceeding; (2) the issue must have actually been litigated; and (3) the determination must be necessary to the outcome. Spilman, 656 F.2d at 228. Thus, if the bankruptcy court concludes that the above three requirements are met, the court may find facts established in previous litigation conclusive. In re Bosselait, 63 B.R. 452, 456 (Bankr.E.D.Va.1986). The Fifth Circuit has agreed finding that: “... collateral estoppel-arising from an earlier nonbankruptcy suit’s" }, { "docid": "6225106", "title": "", "text": "B.R. at 115. In Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 2213 n. 10, 60 L.Ed.2d 767 (1979), the Supreme Court stated in dicta that if a state court determined factual issues using standards identical to those of § 17 of the former Bankruptcy Code (§ 523 of the present Code) then collateral estop-pel would bar the relitigation of those issues in the bankruptcy court. In re Ross, 602 F.2d 604 (3rd Cir.1979); Overmyer, 52 B.R. at 115. The Sixth Circuit further developed the principle enumerated in Brown v. Felsen stating: Applying collateral estoppel is logically consistent with the Supreme Court’s decision in Brown and the exclusive jurisdiction of the bankruptcy court while at the same time encouraging judicial economy. The determination whether or not a certain debt is dischargeable is a legal conclusion based upon the facts in the case. The bankruptcy court has the exclusive jurisdiction to make the legal conclu-sion_ However, that Congress intended the bankruptcy court to determine the final result — dischargeability or not — does not require the bankruptcy court to redetermine all the underlying facts. In re Stone, 90 B.R. 71, 74 (Bankr.S.D.N.Y.1988) (quoting Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981)). See also, Combs v. Richardson, 838 F.2d 112, 115 (4th Cir.1988); In re Wallace, 840 F.2d 762 (10th Cir.1988). Thus, although this Court must ultimately determine whether a debt is dischargeable pursuant to § 523, “the doctrine of collateral estoppel may be invoked to bar relitigation of the factual issues underlying the determination of dis-chargeability.” In re Stone, 90 B.R. at 75; In re Wallace, 840 F.2d at 764; Carey Lumber Co. v. Bell, 615 F.2d 370, 377-78 (5th Cir.1980). Bankruptcy Courts within the Second Circuit have uniformly held that the doctrine of collateral estoppel can be applied in § 523 dischargeability proceedings when the following four-part test has been met: (1) The issue sought to be precluded is the same issue as that involved in the prior action; (2) The issue has actually been litigated; (3) The issue has been determined by a valid" }, { "docid": "18771147", "title": "", "text": "1991, the Supreme Court overruled both Houtman and Daley as to their interpretation on the availability of collateral estoppel in nondischargeability proceedings. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). The Supreme Court in Grogan stated: Our prior cases have suggested, but have not formally held, that the principles of collateral estoppel apply in bankruptcy proceedings under the current Bankruptcy Code.... Virtually every Court of Appeals has concluded that collateral estoppel is applicable in discharge exception pro-ceedings_ We now clarify that collateral estoppel principles do indeed apply in discharge exception proceedings pursuant to § 523(a). Grogan, 498 U.S. at 284-85 n. 11, 111 S.Ct. at 658 n. 11 (citations omitted) (emphasis added). In applying collateral estoppel, we apply federal law to determine the preclusive effect of a prior federal diversity judg ment. Under the federal standard, to foreclose relitigation of an issue under collateral estoppel, four elements must be met: 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) It must have been determined by a valid and final judgment; and 4) The determination must have been essential to the final judgment. Clark v. Bear Stearns & Co., 966 F.2d 1318, 1320 (9th Cir.1992); Spilman v. Harley, 656 F.2d 224, 227-28 (6th Cir.1981); Matter of Ross, 602 F.2d 604, 608 (3d Cir.1979). The party seeking to assert collateral estoppel has the burden of proving all the requisites for its application. Spilman, 656 F.2d at 229; Matter of Merrill, 594 F.2d 1064, 1067 (5th Cir.1979); In re Spector, 22 B.R. 226, 231 (Bankr.N.D.N.Y.1982). To sustain this burden, a party must introduce a record sufficient to reveal the controlling facts and pinpoint the exact issues litigated in the prior action. Any reasonable doubt as to what was decided by a prior judgment should be resolved against giving it collateral estoppel effect. The doctrine of collateral estoppel serves the purpose of protecting parties from multiple lawsuits and the possibility of inconsistent decisions, and it conserves judicial resources. Lytle v. Household" }, { "docid": "18607289", "title": "", "text": "judgments not be given res judicata effect to preclude litigation of dischargeability issues which could have been, but were not, litigated in the earlier proceeding. Id. at 138-39, 99 S.Ct. at 2208-09; see also Spilman v. Harley, 656 F.2d 224, 226 (6th Cir.1981) reh’g denied. The Court reserved the question of the collateral estoppel or issue preclusive effect of “questions actually and necessarily decided in a prior suit.” Brown v. Felsen, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10. It noted, however, that “in the absence of countervailing statutory policy,” collateral estoppel would bar relitigation of those issues in bankruptcy court. Id. The application of collateral estoppel to preclude relitigation of questions actually litigated and necessarily decided by a jury in an earlier diversity action is consistent with the policy of the bankruptcy statute and the Supreme Court’s decision in Brown v. Felsen. As noted by the Sixth Circuit in Spilman v. Harley, 656 F.2d 224: The determination, whether or not a certain debt is dischargeable is a legal conclusion based upon the facts in the case. The bankruptcy court has the exclusive jurisdiction to make that legal conclusion. It must apply the statute to the facts and decide to discharge or not. Therefore, res judicata does not apply to prevent litigation of every issue which might have been covered in the ... [earlier] proceeding on the debt. However, that Congress intended the bankruptcy court to determine the final result — dis-chargeability or not — does not require the bankruptcy court to redetermine all the underlying facts. Id. at 227. The Third Circuit, in Matter of Ross, 602 F.2d 604 (3d Cir.1979), held that collateral estoppel would preclude relitigation of an issue previously litigated by the parties in federal court if the bankruptcy court found that: “(1) the issue sought to be precluded [was] the same as that involved in the prior action, (2) that issue [was] actually litigated, (3) it [was] determined by a valid and final judgment, and (4) the determination [was] essential to the prior judgment.” Id. at 607-08. Other circuits have held" }, { "docid": "16390226", "title": "", "text": "her complaint to except from discharge the judgment rendered against Debtor in the state court action. Section 523 provides in pertinent part that: (а) A discharge ... does not discharge an individual Debtor from any debt— £ ‡ * * * * (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny; }j! iji !}c Sfc Sfc (б) for willful and malicious injury by the Debtor to another entity or to the property of another entity.... Specifically, plaintiff contends that the state court judgment resulting from Debt- or’s fraudulent breach of contract, conversion and punitive damages represents debts for fraud and for willful' and malicious injury. Plaintiff requests application of collateral estoppel, preventing relitigation of the factual issues herein. The standard to determine the applicability of collateral estoppel requires: that the precise issue in the later proceedings have been raised in the prior proceeding, that the issue was actually litigated, and that the determination was necessary to the outcome. Spilman v. Harley, 656 F.2d 224, 228 (6th Cir.1981) (citations omitted). The court further specified that [i]f a state court should determine factual issues using standards identical to those in dischargeability proceedings, then collateral estoppel — if held to be applicable and in the absence of countervailing statutory policy — would bar relit-igation of those issues in the bankruptcy court. This court holds that where all the requirements of collateral estoppel are met, collateral estoppel should preclude relitigation of factual issues. Id. at 227-28. See also Combs v. Richardson, 838 F.2d 112 (4th Cir.1988) (collateral estoppel applies to bar Debtor’s relitigation in a dischargeability proceeding if an examination of the record of the earlier proceeding satisfies the bankruptcy court that the issue was raised and litigated and that resolution of the issue was necessary to the verdict in the prior case); In re Pitner, 696 F.2d 447 (6th Cir.1982) (collateral estoppel applies if the state court record reflects a finding that the issue of willful and malicious action on the part of the Debtor was litigated in the state court and was necessary to the state court" }, { "docid": "18521137", "title": "", "text": "state court was proof by a preponderance of the evidence, whereas the correct standard of proof for dischargeability proceedings under section 523(a)(6) of the Bankruptcy Code is clear and convincing evidence. Debtor also maintains that, because the state court judgment has been appealed, Plaintiffs motion for summary judgment is not ripe for decision and this court should not rule on the motion until the state court appeals process has been completed. CONCLUSIONS OF LAW In Brown v. Felsen, 442 U.S. 127, 138-139, 99 S.Ct. 2205, 2213, 60 L.Ed.2d 767 (1979), the Supreme Court held that res judicata does not apply to dischargeability proceedings and that a bankruptcy court may consider evidence extrinsic to the judgment and record of a prior state suit. However, the Court expressly left open the question of whether collateral estoppel is applicable in dischargeability proceedings: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit, (citations omitted) If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Because respondent does not contend that the state litigation actually and necessarily decided either fraud or any other question against petitioner, we need not and therefore do not decide whether a bankruptcy court adjudicating a § 17 question should give collateral-estoppel effect to a prior decision. Id. at n. 10. Subsequently, this court’s circuit court of appeals stated that “[ajpplying collateral estoppel is logically consistent with the Supreme Court’s decision in Brown and the exclusive jurisdiction of the bankruptcy courts while at the same time encouraging judicial economy.” Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981). The Sixth Circuit found no reason to permit the relit-igation of facts previously litigated which were necessary to the outcome of prior litigation and held “that" }, { "docid": "1264192", "title": "", "text": "former Bankruptcy Act; similar to § 523 of the present Bankruptcy Code), then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court.” Brown, 442 U.S. at 139 n. 10, 99 S.Ct. 2213 n. 10. 2.02. Several Circuit opinions have addressed the issue of collateral estoppel in bankruptcy dischargeability litigation. The Ninth Circuit held that, in appropriate circumstances, a prior judgment may be pri-ma facie evidence of the facts contained therein, but it will never be granted issue preclusive effect. In re Rahm, 641 F.2d 755, 757 (9th Cir.1981), cert. denied, 454 U.S. 860, 102 S.Ct. 313, 70 L.Ed.2d 157 (1981). Other circuits have found that issue preclusion may be appropriate in some circumstances. For example, the Sixth Circuit held: “Applying collateral estoppel is logically consistent with the Supreme Court’s decision in Brown and the exclusive jurisdiction of the bankruptcy court while at the same time encouraging judicial economy ... that Congress intended the bankruptcy court to determine the final result — dischargeability or not — does not require the bankruptcy court to redetermine all the underlying facts ... this court holds that where all the requirements of collateral estoppel are met, collateral estoppel should preclude relit-igation of factual issues.” See, e.g., Spilman v. Harley, 656 F.2d 224, 227-28 (6th Cir.1981). To the effect that a prior judgment may allow issue preclusion in dischargeability litigation provided that traditional tests for preclusion are met, see Wheeler v. Laudani, 783 F.2d 610 (6th Cir.1986); Lombard v. Axtens, 739 F.2d 499 (10th Cir.1984). 2.03 The Fifth Circuit has also held that issue preclusion may apply to discharge-ability litigation in bankruptcy court. See, Matter of Shuler, 722 F.2d 1253 (5th Cir.1984); Matter of Allman, 735 F.2d 863 (5th Cir.1984); Matter of Poston, 735 F.2d 866 (5th Cir.1984). Shuler, which cites Spil-man, indicates that the predominate view is that collateral estoppel may apply to subsidiary facts actually litigated and necessarily decided and found no error where the bankruptcy court applied such principles in determining the dischargeability of a debt represented by a prior state court judgment." }, { "docid": "23268112", "title": "", "text": "the dischargeability of debts under 11 U.S.C. § 523(c). As stated in Spilman v. Harley, 656 F.2d 224, 226 (6th Cir.1981): The power to determine dischargeability was granted to bankruptcy courts by the 1970 Amendments to the Bankruptcy Act. Congress intended to take the determinations governed by 11 U.S.C. § 523(c) away from state courts and grant exclusive jurisdiction in the bankruptcy courts. See Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 2211-12, 60 L.Ed.2d 767 (1979); Matter of Pigge, 539 F.2d 369, 371 (4th Cir.1976) (footnote omitted) In light of this controlling Sixth Circuit Court of Appeals Opinion, among others, this Court is chary of adopting so exotic an interpretation. Finally, Plaintiff has asked, in the alternative, for the debt to be found nondis-chargeable based on collateral estoppel. In Brown v. Felsen the Supreme Court expressly left open the question whether or not collateral estoppel would apply in dis-chargeability proceedings: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10, 60 L.Ed.2d at 776 n. 10. In Spilman v. Harley, the Sixth Circuit Court of Appeals addressed the use of collateral estoppel, or “issue preclusion”, in dischargeability litigation. The Court held that where all the requirements of collateral estoppel are met, collateral estoppel should preclude relitigation of factual issues. 656 F.2d at 228. The use of collateral estoppel in a dischargeability proceeding requires that the precise issue constituting the grounds for nondischargeability were raised in the prior proceeding, that the issue was actually litigated, and that the determination was necessary to the outcome. Spilman, supra at 228; In re Sostarich, 53 B.R. 27 (Bankr.W.D.Ky.1985). Therefore, the initial inquiry must address whether the issue was actually litigated in state court. As reproduced above, the only materials documenting the state court litigation is the Referee’s Report. This does not appear to be a sufficient record to" }, { "docid": "13179118", "title": "", "text": "U.S. 817, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984); Goss v. Goss, 722 F.2d 599, 602-04 (10th Cir.1983), and Matter of Ross, 602 F.2d 604, 607 (3d Cir.1979) (“doctrine of collateral estoppel may be applicable to a dischargeability determination by the bankruptcy court”). The majority of courts apply collateral estoppel to dischargeability determinations where the state litigation actually and necessarily decided the relevant issue. See Matter of Shuler, 722 F.2d at 1256 (“that collateral estoppel may apply to subsidiary facts actually litigated and necessarily decided— represents the predominant view of the other circuits that have considered the issue”). This result is, we believe, the appropriate one. As the Sixth Circuit noted in Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981), “that Congress intended the bankruptcy court to determine the final result — dischargeability or not — does not require the bankruptcy court to redetermine all the underlying facts.” Where 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. See id. at 228. Thus, if the requirements for applying collateral estoppel have been satisfied, then that doctrine should apply to bar relitigation of an issue determined by a state court. B. Application of Collateral Estoppel Principles in this Case As stated by the district court and acknowledged by the parties, there are four requirements for collateral estoppel: 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 of the issue must have been essential to the final judgment, and 4) the party against whom estoppel is invoked must be fully represented in the prior action. See Teamsters Local 282 Pension Trust Fund v. Angelos, 815 F.2d 452, 456 n. 3 (7th Cir.1987); Gilldorn Sav. Ass’n v. Commerce Sav. Ass’n, 804 F.2d 390, 392 (7th Cir.1986); Ferrell v. Pierce, 785 F.2d 1372, 1384-85 (7th Cir.1986). To establish that a debt is nondischargeable under 11 U.S.C. § 523(a)(4)," }, { "docid": "2619392", "title": "", "text": "1064, 1067, 5 B.C.D. 253, Bankr.L.Rep. (CCH) 1167, 126 (5th Cir.1979). Collateral estoppel precludes relitigation of the same issue between the same parties in different proceedings. See In re Goodman, 25 B.R. 932, 935 n. 4 (Bkrtcy.N.D.Ill.1982). Collateral estoppel requires that the precise issue in the later proceeding was raised in the prior proceeding, that the issue was actually litigated, and that the determination was necessary to the outcome. Matter of Lombard, 739 F.2d 499, 502, Bankr.L.Rep. (CCH) II 69,952 (10th Cir.1984); Spilman v. Hasley, supra, 656 F.2d at 228; Matter of Merrill, supra, 594 F.2d at 1067; In re Ross, 602 F.2d 604, 608, 5 B.C.D. 700 (3rd Cir.1979); In re Marks, 40 B.R. 614, 617 (Bkrtcy.D.S.C.1984); In re Mueller, 34 B.R. 869, 9 C.B.C.2d 856, 859 (Bkrtcy.D.Colo.1983). While the Supreme Court has concluded that for purposes of determining the dis-chargeability of a debt, the doctrine of res judicata does not prevent the bankruptcy court from conducting an independent inquiry and receiving extrinsic evidence relating to dischargeability, it expressly left open the question of collateral estoppel: If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17 [the predecessor of § 523], then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 2213, 60 L.Ed.2d 767 (1979) (emphasis added). The Tenth Circuit, In Goss v. Goss, 722 F.2d 599, 12 B.C.D. 75, Bankr.L.Rep. (CCH) ¶ 69,523 (10th Cir.1983), specifically held that collateral estoppel applies to a state court’s determination that certain obligations embodied in a divorce decree were in the nature of maintenance and support, and could not be relitigated in a proceeding before the bankruptcy court to determine whether the debt was nondischargeable. The court held that “[w]here a state court has jurisdiction to determine dischargeability concurrent with that of the bankruptcy court, ... collateral estoppel should be applied.” Id. at 604. However, the court refrained from deciding whether collateral estoppel should apply" }, { "docid": "4680975", "title": "", "text": "the debtor argues that there are material issues of fact which exist that must be litigated which preclude summary judgment. The doctrine of res judicata, or claim preclusion, is distinguishable from the principle of collateral estoppel in that res judicata forecloses all that which might have been litigated previously by the parties, whereas collateral estoppel treats as final only those issues actually and necessarily decided in a prior suit. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). In Brown v. Felsen, 442 U.S. 127, 139, 99 S.Ct. 2205, 2213, 60 L.Ed.2d 767 (1979), in dealing with the principle of res judicata, the Supreme Court noted in footnote 10 that if a state court determined factual issues in a state law question, using standards identical to those of § 17 of the former Bankruptcy Act (now 11 U.S.C. § 523), the principle of collateral estoppel, in the absence of countervailing policy, would bar relitigation of those issues in the bankruptcy court. In Spilman v. Harley, 656 F.2d 224 (6th Cir.1981), the court determined that issue preclusion was not at odds with the Supreme Court’s decision in Brown v. Felsen stating, Applying collateral estoppel is logically consistent with the Supreme Court’s decision in Brown and the exclusive jurisdiction of the bankruptcy court while at the same time encouraging judicial economy. The determination whether or not a certain debt is dischargeable is a legal conclusion based upon the facts in the case. The bankruptcy court has the exclusive jurisdiction based upon the facts in the case ... Therefore, res judicata does not apply to prevent litigation of every issue which might have been covered in the state court proceeding on the debt. However, that Congress intended the bankruptcy court to determine the final result — dischargeability or not— does not require the bankruptcy court to redetermine all the underlying facts. (Emphasis added). Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981); See In re Wallace, 840 F.2d 762" }, { "docid": "10186283", "title": "", "text": "the parties’ separation agreement were in the nature of sustenance alimony. April 15, 1988 Transcript at 27. See also Proceeding Memo, Entry (June 1, 1988). In Klingman v. Levinson, 831 F.2d 1292 (7th Cir.1987), the seventh circuit noted that: ... there is disagreement among the courts regarding the collateral estoppel effect accorded state court judgments in bankruptcy proceedings involving dis-chargeability. Some courts, because of the bankruptcy courts’ exclusive jurisdiction in determining dischargeability, will give no collateral estoppel effect to state court determinations, while other courts do apply collateral estoppel when the issue was litigated previously by the parties. The majority of courts apply collateral estoppel to dischargeability determinations where the state litigation actually and necessarily decided the relevant issue. This result is, we believe, the appropriate one. As the Sixth Circuit noted in Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981), “that Congress intended, the bankruptcy court to determine the final result — dischargeability or not — does not require the bankruptcy court to redetermine all the underlying facts.” Id. at 1295 (citations omitted). See also In re Wallace, 840 F.2d 762, 764 (10th Cir. 1988) (although the bankruptcy court in a dischargeability action under § 523(a) ultimately determines whether or not a debt is dischargeable, we believe that the doctrine of collateral estoppel may be invoked to bar relitigation of the factual issues underlying the determination of dischargeability) (citation omitted); In re Weitzel, 72 B.R. 253 (Bkrtcy.N.D.Ohio 1987) (in Spilman, the court held that where all requirements of collateral estoppel are met, collateral estop-pel should preclude relitigation of factual issues); Matter of Weber, 81 B.R. 482, 483 (Bkrtcy.W.D.Wis.1986) (the Supreme Court has approved the use of collateral estoppel to preclude relitigation of fact questions in dischargeability proceedings) (citation omitted); Matter of Sankner, 69 B.R. 312, 315 (Bkrtcy.M.D.Fla.1987) (when factual issues needed to determine the dischargeability of a debt are also necessary to the state court determination and all of the requirements of collateral estoppel are met, collateral estoppel should preclude relitigation of factual issues). Collateral estoppel precludes relitigation of factual issues if: (1) the issue to be precluded" }, { "docid": "2067871", "title": "", "text": "needless litigation. Parklane Hosiery Co., Inc. v. Shore, supra. On the question of the collateral estoppel effect of state court judgments in later proceedings in bankruptcy court to determine dischargeability, the Supreme Court has stated: If in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, [now § 523], then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court. Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 2213 n. 10, 60 L.Ed.2d 767 (1979). Since the Brown case, the lower courts have disagreed about the use of collateral estoppel in dischargeability cases. Some courts have refused to apply collateral es-toppel because of the view that it interferes with the exclusive jurisdiction of the bankruptcy court to determine the dischargeability of debts. See, e.g., In re Rahm, 641 F.2d 755 (9th Cir.1981). The better view, and that which is most consistent with the Supreme Court’s decision in Brown, supra, is that collateral estoppel should apply where the precise issue in the dischargeability determination was previously litigated by the parties in state court. See, Matter of Ross, 602 F.2d 604 (3rd Cir.1979); Matter of Merrill, 594 F.2d 1064 (5th Cir.1979); In re Pitner, 696 F.2d 447 (6th Cir.1982). The Sixth Circuit in Spilman v. Harley, 656 F.2d 224 (1981), aptly described the rationale for the use of collateral estoppel in this situation: The determination whether or not a certain debt is dischargeable is a legal conclusion based upon the facts in the case. The bankruptcy court has the exclusive jurisdiction to make that legal conclusion. It must apply the statute to the facts and decide to discharge or not. Therefore, res judicata does not apply to prevent litigation of every issue which might have been covered in the state court proceeding on the debt. However, that Congress intended the bankruptcy court to determine the final result — dischargeability or not— does not require the bankruptcy court to redetermine all the underlying facts. As the Court" }, { "docid": "5953901", "title": "", "text": "under the former § 17, now § 523 of the Bankruptcy Code. Brown v. Felson, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). However, the Court in Brown expressly declined to address the issue of collateral estoppel and indicated that issue preclusion would be proper in certain circumstances. A leading case addressing the use of collateral estop-pel in bankruptcy dischargeability proceedings is Spilman v. Harley, 656 F.2d 224 (6th Cir.1981). In Spilman, the Court established three criteria which must be proven in order for collateral estoppel to apply: (1) the precise issue in the later proceeding must have been raised in the prior proceeding; (2) the issue must have actually been litigated; and (3) the determination must be necessary to the outcome. Spilman, 656 F.2d at 228. Thus, if the bankruptcy court concludes that the above three requirements are met, the court may find facts established in previous litigation conclusive. In re Bosselait, 63 B.R. 452, 456 (Bankr.E.D.Va.1986). The Fifth Circuit has agreed finding that: “... collateral estoppel-arising from an earlier nonbankruptcy suit’s determination of subsidiary facts that were actually litigated and necessary to the decision — may properly be invoked by the bankruptcy court to bar relitigation of those issues, even though the bankruptcy court retains the exclusive jurisdiction to determine the ultimate question of the dischargeability under federal bankruptcy law of the debt, upon the facts so based and other evidence before the court.” Matter of Shuler, 722 F.2d 1253, 1255 (5th Cir.1984). See also Matter of Ross, 602 F.2d 604 (3rd Cir.1979); Ferriell, The Preclusive Effect of State Court Decisions in Bankruptcy, 58 Am.Bankr.L.J. 349 (1984). The Fourth Circuit Court of Appeals has also analyzed the res judicata and collateral estoppel effect of a nonbankruptcy judgment in a bankruptcy dischargeability proceeding. In Matter of Pigge, 539 F.2d 369 (1976), the Court found it was well settled that “issues which have been necessarily litigated in the State Court are entitled to res judicata and collateral estoppel effect.” Pigge, 539 F.2d at 373. The fraud issues raised in this dis-chargeability suit under § 523 are identical to" } ]

[ { "docid": "22805916", "title": "", "text": "those above detailed are relied upon. Having heard the parties to the present proceeding, the trial court held that Ensten, the patentee, unreasonably neglected and delayed to disclaim claim 2 after the District Court in Ohio had declared it-invalid, denied an application for injunction and dismissed the bill. The Circuit Court of Appeal» affirmed this action February 4, 1930, Ensten et al. v. Simon, Ascher & Co., 38 F. (2d) 71; called attention to the conflict between its views and those of the Circuit Court of Appeals, Seventh Circuit, Excelsior Steel Furnace Co. v. Meyer & Bro. Co., 36 F. (2d) 447, and suggested the desirability of an authoritative determination of the controverted question of law. The petition here for certiorari asked for the writ because of the conflict of opinion in the two Circuits. The point contested below and differently ruled in the Circuit Courts of Appeals concerns the effect of the delay in disclaiming. According to the usual practice we will consider nothing else. Determination of the issue presented must turn upon the construction and effect of §§ 65 and 71, Title 35, U. S. C. (R. S. §§ 4917, 4922; ■§§ 7 and 9, Act of 1837, 5 Stat. 193), copied in the margin. NTfie first of these sections provides in substance that whenever, through inadvertence, accident, or mistake, and without any fraudulent or deceptivéintention, a patenteé h'ás claimed nidre than that of which he was the original or first inventor or' discoverer, he may be permitted to make disclaimer of such parts of the thing patented as he shall not choose to claim or hold'by virtue of his patent. The other permits the patentee to maintain. á -suit on his patent, although through inadvertence; accident, or mistake, and without any wilful default or intention to mislead the public, he has claimed ’some material or substantial part as an invention of which he was not the original or first inventor. Pie is deprived, however, of the right to recover costs, unless he has filed proper disclaimer before commencement of his suit. And it further, provides: “But no" } ]

[ { "docid": "9364159", "title": "", "text": "C.) 204 F. 93; Flat Slabs Patents Co. v. Wright Barrett & Stilwell Co. (D. C.) 283 F. 345; Rose v. Fretz (C. C.) 98 F. 112; Electric Mfg. Co. v. Edison Electric Light Co., 61 F. 834 (C. C. A. 7); Carson Inv. Co. v. Anaconda Copper Mining Co., 26 F.(2d) 651, 657 (C. C. A. 9). The evidence in the ease at bar differs in no substantial particular from that in the Brandes Case. Hence the decree of this court, in the pending ease, must be dictated by the decision of the Circuit Court of Appeals in the Brandes Case, unless the defense, here made for the first time, under R. S. § 4897 (35 USCA § 38), is sound. That section provides in part: “Any person who has an interest in an invention or discovery, whether as inventor, discoverer, or assignee, for which a patent was ordered to issue upon the payment of the final fee, but who f ails to make payment thereof within six months from the time at which it was passed and allowed, and notice thereof was sent to the applicant or his agent, shaH have a right to make an appHeation for a patent for such invention or discovery the same as in the ease of an original appHeation. But such second appHeation must be made within two years after the aHowanee of the original appHeation.” The original appHeation, filed July 14, 1913, was aHowed April 11, 1916, but the final fee was not paid within 6 months from such aHowanee. On March 22,1918, 20 days less than the 2-year statutory period, the second or renewed appHeation was filed. Six days later an amendment was filed, canceling claims 25, 26, and 27, with the statement that those claims had “been canceled, as those claims wiH be incorporated, together with others, in a divisional application directed to the tympanum or diaphragm per se.” The divisional appHeation resulting in the patent in suit was filed April 17, 1918, or 6 days more than 2 years after the aHowanee of the original appHeation. The specification" }, { "docid": "6411434", "title": "", "text": "be inequitable to hold the defendant guilty of infringing the claim in its changed form by reason of acts committed before the claim had been so changed, especially after such acts had been held to be noninfringing. We think this action was erroneous. So far as substantial relief is concerned, disclaimer before suit is begun affects, necessarily, only the costs in the court below. Until the claim was actually held invalid plaintiff was not bound to disclaim as to features of the patent it was contending were valid, and there was thus no unreasonable delay in filing the disclaimer after the proof of the prior Ashland practice and until the claim was held invalid against plaintiffs’ contention. A disclaimer having been made before appeal to this court, we cannot review the decision upon the original claim. Attention is called to the per curiam decision of this court on petition for rehearing in Excelsior, etc., Co. v. Williamson, etc., Co. (C. C. A.) 269 F. at pages 619 and 620, and cases there cited. The provision of R. S. § 4917 (35 USCA § 65), that “no such disclaimer shall affect any action pending at the time of its being filed, except so far as may relate to the question of unreasonable neglect or delay in filing it,” obviously contemplates that the pending action may proceed in spite of the disclaimer. We cannot agree that the change worked by the Patent Office proceedings was so radical that, if upheld, it would create substantially a new patent — a reissue — which the Patent Office alone has power to issue. According to the stipulated condensation of Patent Office history, the only changes in the specification and in original claim 13 which we think pertinent here are these: The specification as filed described the improved method of the machine as consisting in the “softening of the greater portion of the wax on the surfaces to be glued together,” etc. Claim 13 read: “The method of sealing waxed cartons consisting of heating the surfaces to be glued together to soften the wax, applying glue" }, { "docid": "22138297", "title": "", "text": "does not force him to pay that price in order to save them. He may relinquish the privilege of disclaimer and proceed to re-litigate, in another court, the claims which have been declared to be invalid, but at the risk of loss in that • court of the other claims of the patent even though valid, if it likewise holds invalid the previously adjudicated claims. A different question is presented where the claims adjudged invalid are abandoned, whether by a tardy disclaimer or otherwise, and a second suit is brought to restrain infringement of other claims, see Ensten v. Simon, Ascher & Co., supra, or where in the same suit in which some claims are-held' invalid the plaintiff seeks to secure without disclaimer the benefits of a favorable decision on other claims. See R. Hoe & Co. v. Goss Printing Press Co., 31 F. (2d) 565; Higgin Mfg. Co. v. Watson, 263 Fed. 378; Liquid Carbonic Co. v. Gilchrist Co., 253 Fed. 54; Herman v. Youngstown Car Mfg. Co., 191 Fed. 579. We do not decide whether the purported disclaimers operate to enlarge the .claims in such fashion as to render both the old and the new claims invalid by virtue of the reissue statute. See Altoona Publix Theatres, Inc. v. American Tri-Ergon Corp., supra, 490-492. That question is not presented by the petition for certiorari. The courts below do not appear to have passed upon it, and it may be unnecessary to decide it on the new trial. The decree will be affirmed. \"No. 590. In No. 590 the questions certified are as follows: “1. Where certain but not all of the claims of a patent .are in suit, and all of the claims in suit are held and decreed to be invalid pursuant to a finding and judgment to that effect of the Circuit Court of Appeals of the cir cuit,' may the owner of the patent maintain a suit afterward brought thereon in the same judicial circuit as that in which the first cause was decided, and against a different defendant not involved in the first suit" }, { "docid": "3253406", "title": "", "text": "that some claims were too broad and therefore invalid. In that situation, the patentee’s right of review has not been cut off, but has been preserved and exercised. The practice of the Circuit Court of Appeals of this circuit uniformly has been to require a disclaimer as to claims held invalid because too broad, as a condition precedent to the award of a preliminary injunction against infringement of claims held to be valid. See Morgan Co. v. Alliance Co., 176 F. 100, 100 C. C. A. 30; Herman v. Youngstown, 191 F. 579, 587, 112 C. C. A. 185; Cummer v. Atlas Dryer Co., 193 F. 993, 998, 113 C. C. A. 611; Higgin Mfg. Co. v. Watson (C. C. A.) 263 F. 378. The same practice has been adopted and followed in the Seventh circuit. See Carbonic Co. v. Gilchrist Co., 253 F. 54, 58, 165 C. C. A. 652. In all these cases the lower court had sustained the validity of certain patent claims, and had awarded a preliminary injunction, and, on appeal by the defendant, the holding was that some claims only were valid and others were invalid. The instruction to the lower court was to grant a preliminary injunction restraining infringement of the valid claims only upon condition that the plaintiff produce evidence that a disclaimer had already been filed as to the invalid •claims. In some instances the time given was 30, and in others 60, days within which to make such disclaimer and furnish proof. In Herman v. Youngstown, the Page Mach. Co. Case is cited as one of the authorities supporting the order made. The affirmance without criticism or modification of the decree of the District Court in equity case 573, is an implied approval of the practice adopted in the . Page Mach. Co. Case. Thus far no inconsistency is perceived in the decisions of the several courts. The controlling question then is wheththe patentee, Louis H. Ensten, has unreasonably neglected or delayed to make disclaimer as to claim 2. The authorities reviewed hold no more than that he is not required" }, { "docid": "21669515", "title": "", "text": "PER CURIAM (after stating the facts as above). The question is whether a patentee, to save the life of his patent, when one claim thereof has been held invalid by an interlocutory decree, must either appeal from such decree, or promptly file a disclaimer. With respect to this very patent, Judge Westenhaver held that he must. Ensten v. Rich-Sampliner Co. (D. C.) 13 F.(2d) 132. But this was reversed on another point, and the disclaimer question called moot, in 19 F.(2d) 66 (C. C. A. 6). In the ease at bar, the court below followed the reasoning of Judge Westenhaver. The appellants contend that election between the alternatives of appeal or disclaimer should not be required until entry of a final decree. They argue that an interlocutory decree does not finally determine the invalidity of a claim, because the correctness of sueh interlocutory ruling may be questioned upon an appeal from the final decree; that to require a patentee, to elect between appealing and disclaiming, when only an interlocutory decree has been entered, allows him the privilege of testing the interlocutory ruling upon appeal from the final decree only at the risk of losing his entire patent, if he fails to reverse the interlocutory order; and that the disclaimer statute should not be construed to have contemplated any such result. However persuasive these arguments might appear to the court as now constituted, we think we are foreclosed from considering them by the recent decision of Hoe & Co. v. Goss Printing Press Co. There the plaintiff’s bill was dismissed for non-infringement. On appeal this court reversed the decree, holding one claim of the patent good and several invalid. 30 F.(2d) 271. Our decree was interlocutory, and yet, on motion to recall and amend our mandate [31 F.(2d) 565], we required the plaintiff either to petition for certiorari or to file a disclaimer within 30 days after expiration of the time for such a petition. The logic of that decision is equally applicable to an interlocutory decree of the district court. In fact, in such ease it operates with slightly less" }, { "docid": "7552427", "title": "", "text": "THACHER, District Judge. On motion for preliminary injunction, the question whether disclaimer of claim 12 of Gullborg patent, No. 1,307,734, was seasonably filed after the interlocutory adjudication of invalidity in Lyman Mfg. Co. v. Bassick Mfg. Co., 18 F.(2d) 29 (C. C. A. 6), was not fairly raised and was reserved for final hearing. The interlocutory character of the determination of invalidity is quite immaterial under the rule presently prevailing in this circuit. Ensten et al. v. Simon Ascher & Co., Inc. (C. C. A. 2, February 3, 1930) 38 F.(2d) 71; Hoe v. Goss (C. C. A.) 31 F.(2d) 565. But see Excelsior Steel Furnace Co. v. F. Meyer & Bro. Co. (C. C. A. 7) 36 F.(2d) 447. But in the Hoe Case plaintiff was allowed thirty days after expiration of the time allowed to file petition for certiorari, within which to file disclaimer, and plaintiff at bar did not wait so long. There is therefore no basis for finding unreasonable neglect or delay in entering the disclaimer as required by Rev. St. § 4922 (35 USCA § 71). The proofs on final hearing disclose no reason for questioning the validity of the Gullborg, Zerk or Winkley patents, or for doubting the correctness of decision on motion for injunction pendente lite that the sale of defendant’s grease guns with Gullborg and Zerk couplers was a contributory infringement of these patents. After the injunction issued, the Adams Company continued to sell its grease guns, but with modified couplers designated as the “Adams Snap-On Coupler,” in which the Gullborg suction effect was eliminated. Plaintiff contends that the limitations placed upon the Gullborg combination claims 14 and 15 in Bassick Mfg. Co. v. C. P. Rogers & Co. (D. C.) 26 F.(2d) 724, were erroneous, and that the error arose from failure to understand the opinion of Judge Denison in Lyman Mfg. Co. v. Bassick Mfg. Co., supra. Reference is made to a decision of the District Court for the Western District of Tennessee in which the learned District Judge stated from the bench that he could not agree with the" }, { "docid": "13221296", "title": "", "text": "the delay of over a year in filing his disclaimer, and it is impossible to consider it as other than unreasonable. As between the conflicting decisions of the Seventh Circuit Court of Appeal in Excelsior Steel Furnace Co. v. F. Meyer & Bro. Co., 36 F.(2d) 447 (December, 1929), and that of the Second Circuit Court of Appeal in the Ensten Case (38 F.(2d) 71, February, 1930), plaintiff evidently relied upon the former whereas the Supreme Court on certiorari upheld the latter. Only shortly thereafter did plaintiff disclaim. The period of delay, whether dated from the filing of the master’s report or •from the submission of the exceptions to the District Judge, without plaintiff urging error as to the finding of invalidity of claim 37, was clearly too long. Cf. Minerals Separation, Ltd., v. Butte & Superior Mining Co., 250 U. S. 336, 39 S. Ct. 496, 63 L. Ed. 1019 (1919); Bassick Mfg. Co. v. Adams Grease Gun Corp., 52 F.(2d) 36 (C. C. A. 2d, 1931). On the cross-appeal the decree will be reversed, with directions to dismiss the bill; plaintiff’s appeal thereby becomes moot, and as such will bo dismissed. Costs in both courts awarded to defendants. “§ 65. Disclaimer. Whenever, through inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, a patentee has claimed more than that of which he was the original or first inventor or discoverer, his patent shall be valid ’for all that part which is truly and justly his own, provided the same is a material or substantial part of the thing patented; and any such patentee, his heirs or assigns, whether of the whole or any sectional interest therein, may, on payment of the fee required by law, make disclaimor- of such parts of the thing patented as he shall not choose to claim or to hold by virtue of the patent or assignment, stating therein the extent of his interest in such patent. Such disclaimer * shall be in writing, attested by one or more witnesses, and recorded in the Patent Office; and it shall thereafter bs considered" }, { "docid": "22138287", "title": "", "text": "Circuit, Radio Corporation v. Du bilier Condenser Corp., 59 F. (2d) 305, 309, and petitions to this Court for certiorari were denied, 287 U. S. 648, 650. More than eight months after the denial, of certiorari respondents filed, in the Patent Office, purported disclaimers of each of the claims thus held invalid, and more than a month later began the present suit in the district court for Maryland to restrain infringement of the same claims and other claims of the same patents not previously adjudicated. A motion to dismiss the suits as to both patents for unreasonable delay in filing disclaimers of the claims previously held invalid, and because the disclaimers were inadequate, was granted by the District Court upon the latter ground. The Court of Appeals for the Fourth Circuit reversed and ordered a new trial, 77 F. (2d) 556,. holding that respondents were not barred from maintaining the second suit, against different defendants, for infringement of 'the claims previously held invalid and that the disclaimer of those claims was not' prerequisite to maintenance of the suit upon the claims not previously adjudicated. It intimated that the second suit could not be maintained unless brought without unreasonable delay, but it concluded that it could not say that there had been unreasonable delay in the present case. Whether the respondents’ disclaimers are merely an attempted formal alteration of the claims so as to conform them more precisely to the specifications without changing their substance or conceding their invalidity, see Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403, 435, or whether they are in effect such alterations of the substance of the claims as to bring them within the requirements and limitations of the re-issue statute, R. S. § 4916, 35 U. S. C. 54, so as to render both the old and the new claims invalid, see Altoona Publix Theatres, Inc. v. American Tri-Ergon Corp., 294 U. S. 477, 490-492, are questions which have been much argued here and below. In reaching its decision the Court of Appeals assumed, as we shall assume without deciding, that the" }, { "docid": "13221295", "title": "", "text": "of the Ensten Case has been carried even further by the Circuit Court of Appeals for the Second Circuit in Radio Condenser Co. v. General Instrument Corp., 65 F.(2d) 458, 459 (1933). Two claims of the patent there in suit had been held invalid by the Examiner of Interferences in the Pat ent Office. The patentee had neither disclaimed nor pursued the available remedies of an appeal through the Patent Office or of a suit against the interfering patentee. Judge Swan said: “The principle which the Ensten Case applies is that a patentee who discovers that he has included in his claims something of whieh he was not the first inventor must either promptly pursue available remedies to vindicate his claimed monopoly or else surrender his pretensions. * * * When the patentee receives his warning from a competent official, whether it be by decision of a District Judge or of a Patent Office Examiner, he should be compelled to make good his claim or to renounce it.” Plaintiff has offered no other excuses for the delay of over a year in filing his disclaimer, and it is impossible to consider it as other than unreasonable. As between the conflicting decisions of the Seventh Circuit Court of Appeal in Excelsior Steel Furnace Co. v. F. Meyer & Bro. Co., 36 F.(2d) 447 (December, 1929), and that of the Second Circuit Court of Appeal in the Ensten Case (38 F.(2d) 71, February, 1930), plaintiff evidently relied upon the former whereas the Supreme Court on certiorari upheld the latter. Only shortly thereafter did plaintiff disclaim. The period of delay, whether dated from the filing of the master’s report or •from the submission of the exceptions to the District Judge, without plaintiff urging error as to the finding of invalidity of claim 37, was clearly too long. Cf. Minerals Separation, Ltd., v. Butte & Superior Mining Co., 250 U. S. 336, 39 S. Ct. 496, 63 L. Ed. 1019 (1919); Bassick Mfg. Co. v. Adams Grease Gun Corp., 52 F.(2d) 36 (C. C. A. 2d, 1931). On the cross-appeal the decree will be" }, { "docid": "662092", "title": "", "text": "Bassick Mfg. Co., 18 F.(2d) 29 (C. C. A. 6). That litigation included six suits, all of which were disposed of in a single opinion on March 23, 1927. Petitions for rehearing were filed in. two of the suits, neither of which, however, involved claim 12. These petitions for rehearing having been denied May 13th, the plaintiff! contends that the time for presenting a petition for certiorari did not expire until August 13th, and that its disclaimer filed on August 29th was well within the period which this court sanctioned as a reasonable time within which to disclaim, in R. Hoe & Co. v. Goss Printing Press Co. (C. C. A.) 31 F.(2d) 565, and Ensten v. Simon, Ascher & Co. (C. C. A.) 38 F.(2d) 71, affirmed, 282 U. S. 445, 51 S. Ct. 207, 75 L. Ed. 453. The defendant, on the other hand, contends that in each of the suits involving claim 12 the mandate was ffled April 23d, so that the time to apply for a writ of certiorari expired July 23d and the time to disclaim thirty days thereafter. The question is of seasonable action. Ordinarily, thirty days after the time expires to petition for certiorari would seem to give the patentee reasonable opportunity to determine bis course of action, as we said in the Hoe and Ensten Cases. In the case at bar, however, the decision that claim 12 was invalid was announced in an opinion which was subject to review as to other claims until August 13th. We do not think the companion suits can be ignored merely because they did not involve claim 12. Had the writ of certiorari been allowed, the Supreme Court’s decision as- to the other claims might have resulted in such a construction of them as would have cast doubt upon the correctness of the lower court’s disposition of claim 12. It was not an unreasonable delay for the patent owner to await this possibility before determining to file the disclaimer. 3. It is contended that defendant’s sale to Wright of pin fittings of the Alemite type did" }, { "docid": "10508084", "title": "", "text": "F. 683; General Motors Corp. v. Rubsam Corp., 6 Cir., 65 F.2d 217; Fruehauf Trailer Co. v. Highway Trailer Co., 6 Cir., 67 F.2d 558. One who invokes the benefits of the disclaimer statute must do so with reasonable promptness after he knows or has reasonable ground for knowing that his patent contains invalid claims. This is because, as we have pointed out, greater liberality is given to one who disclaims than to one who seeks a reissue, and as an offset to this greater liberality, the one disclaiming is expressly required by R.S. § 4922, 35 U.S.C.A. § 71, to proceed promptly under its provisions; whereas, under the reissue statute, only the equitable doctrine of laches applies. However, the time within which one must disclaim varies in different Circuits. In this, the Fourth Circuit, no specific time limit has been set. In some Circuits, thirty days has been held a proper limit, in others sixty. In General Chemical Co. v. Standard Wholesale Phosphate & Acid Works, 4 Cir., 77 F.2d 230, certiorari denied 296 U.S. 606, 56 S. Ct. 122, 80 L.Ed. 430, rehearing denied 296 U.S. 663, 56 S.Ct. 177, 80 L.Ed. 473, decisions applying the different rules are collected and discussed. In that case the Circuit Court of Appeals for this Circuit held (reversing this Court, 8 F.Supp. 265) that a patent owner’s failure to file a disclaimer of an invalid claim until thirty-eight days after the Supreme Court had denied certiorari to review a judgment of the Circuit Court of Appeals of the Third Circuit, holding a claim invalid, was not an unreasonable delay, and therefore did not invalidate a reissue patent, application for which had been filed, especially since during the thirty-eight day period, proceedings were pending in another court to enjoin the patent owner’s suit. As the Court there said (77 F.2d 230, at page 233) : “the owner of the patent had to consider not merely the question of a disclaimer but also the question of the application for a reissue of the patent under the provisions of Rev.St. § 4916, 35 U.S.C.A." }, { "docid": "13221294", "title": "", "text": "would invalidate the whole patent; and these provisions were intended to protect only those who by prompt action either seek to overturn an adverse ruling or retreat from a false position.” 282 U. S. at page 455, 51 S. Ct. 207, 210, 75 L. Ed. 453. Equally did good faith and the spirit of the enactment require that plaintiff herein should either except to the master’s finding that claim 37 was invalid or else disclaim without unreasonable delay. It is, of course, true that even in the absence of an exception a master’s finding may be reviewed by the court, but only in exceptional cases. See Sheffield & Birmingham Coal, Iron R. Co. v. Gordon, 151 U. S. 285, 14 S. Ct. 343, 38 L. Ed. 164 (1894). Neither is plaintiff’s ease aided by defendant’s exception evidently taken purely out of an abundance of caution and never pressed. It was ineffective to discharge the affirmative duty resting upon plaintiff either to “seek to overturn an adverse ruling or retreat from a false position.” This interpretation of the Ensten Case has been carried even further by the Circuit Court of Appeals for the Second Circuit in Radio Condenser Co. v. General Instrument Corp., 65 F.(2d) 458, 459 (1933). Two claims of the patent there in suit had been held invalid by the Examiner of Interferences in the Pat ent Office. The patentee had neither disclaimed nor pursued the available remedies of an appeal through the Patent Office or of a suit against the interfering patentee. Judge Swan said: “The principle which the Ensten Case applies is that a patentee who discovers that he has included in his claims something of whieh he was not the first inventor must either promptly pursue available remedies to vindicate his claimed monopoly or else surrender his pretensions. * * * When the patentee receives his warning from a competent official, whether it be by decision of a District Judge or of a Patent Office Examiner, he should be compelled to make good his claim or to renounce it.” Plaintiff has offered no other excuses for" }, { "docid": "10831135", "title": "", "text": "WOOLSEY, District Judge. The motion is in all respects granted. I. The plaintiff did not avail itself of its right to appeal on or before November 2, 1932, from such part of the interlocutory decree of October 3, 1932, entered in the ease decided by Judge Coleman of Better Packages, Inc., v. L. Link & Co., et al. (D. C.) 1 F. Supp. 132, as held invalid certain claims of patents No. 1,194,752 and No. 1,782,123. I think that under the principles taught in the opinion of the Supreme Court in Ensten v. Simon, Ascher & Co., 282 U. S. 445, 455, 51 S. Ct. 207, 75 L. Ed. 453, illustrated by such decisions as R. Hoe & Co., Inc., et al. v. Goss Printing Press Company, 31 F.(2d) 565, 566 (C. C. A. 2), Radio Condenser Company v. General Instrument Company, 65 F.(2d) 458, 450 (C. C. A. 2), and Otis Elevator Company v. Pacific Finance Corporation, 68 F.(2d) 664, 670 (C. C. A. 9), in order to maintain its right thereafter to sue for infringement of the claims of said patents which were held valid, the plaintiff should have filed its disclaimers in the circumstances here, shown on or before December 2, 1932, that is, within thirty days at least after its time to appeal from the interlocutory decree of October 3, 1932, had expired, as it did on November 2, 1932. Title 28 United States Code, §§ 227 and 22, 7a (28 USCA §§ 227, 227a). The plaintiff either should have justified its position as to these patents by securing, on appeal if it could, a reversal of Judge Coleman’s ruling holding certain claims invalid, or by disclaimer it should have acquiesced in said ruling as the statute prescribes. For the ambit of a patent right must not be left vague, but must be kept clearly defined that the public may know its rights in the face of the patentee’s monopoly- The plaintiff filed its disclaimer in respect of patent No. 1,194,752 on January 24, 1933. This was eighty-three days after the time to appeal from the" }, { "docid": "21669516", "title": "", "text": "the privilege of testing the interlocutory ruling upon appeal from the final decree only at the risk of losing his entire patent, if he fails to reverse the interlocutory order; and that the disclaimer statute should not be construed to have contemplated any such result. However persuasive these arguments might appear to the court as now constituted, we think we are foreclosed from considering them by the recent decision of Hoe & Co. v. Goss Printing Press Co. There the plaintiff’s bill was dismissed for non-infringement. On appeal this court reversed the decree, holding one claim of the patent good and several invalid. 30 F.(2d) 271. Our decree was interlocutory, and yet, on motion to recall and amend our mandate [31 F.(2d) 565], we required the plaintiff either to petition for certiorari or to file a disclaimer within 30 days after expiration of the time for such a petition. The logic of that decision is equally applicable to an interlocutory decree of the district court. In fact, in such ease it operates with slightly less severity, for the patentee may appeal as of right from the district court, while the entertainment of his petition for certiorari is a matter of grace. Adherence to the Hoe Case requires an affirmance of the decree below. This decision appears to be in direct conflict with the principle upon which a decision of the Seventh Circuit has very recently been handed down. Excelsior Steel Furnace Co. v. F. Meyer & Brother Co. (C. C. A.) 36 F.(2d) 447. In that litigation the patentee’s hill was dismissed by the district court. On appeal, certain claims were held valid and others invalid, the opinion being rendered in May, 1917. (C. C. A.) 244 F. 172. Thereafter the District Court entered an interlocutory decree for injunction and accounting. During the accounting, in February, 1922, the defendant asked for dismissal of the suit because no disclaimer had been filed. The motion was sustained by the District Court. This action the Circuit Court of Appeals has reversed, holding that the delay was not unreasonable, since the prior decision was" }, { "docid": "8320268", "title": "", "text": "without means. In Ensten v. Simon, Ascher & Co., 282 U. S. 445, 51 S. Ct. 207, 75 L. Ed. 453, the law. is laid down that, to protect the valid part of a patent containing an invalid claim, the patentee must disclaim the invalid part without unreasonable neglect or delay. Revised Statutes, §§ 4917, 4922 (U. S. C., title 35, §§ 65, 71, 35 USCA §§ 65, 71). Erom the moving papers it appears that no writ of certiorari was sought from the Su-° preme Court to review the Circuit Court of Appeals in the Sixth Circuit. Of course, the effect of a disclaimer would be to limit the plaintiff in all other circuits. Thus the patentee is put in a most embarrassing position. Ordinarily, if the patent is held invalid in one circuit, there is the possibility that a contrary view may be held in .another circuit, and the matter of validity then brought before the United States Supreme Court. The harshness of the result which forecloses a patentee from thus contesting in the various circuits was, however, considered by our own Circuit Court of Appeals in R. Hoe & Co., Inc., et al. v. Goss Printing Press Co., 31 F.(2d) 565, 566. The court said: “While we acknowledge the difficulty and the possibility, it appears to us that so to extend the patentee’s time might result in avoiding the statute altogether.” In view of these two decisions, there remains only a question of fact to decide on this motion. Because at the time of the rendering of the decision in the Sixth Circuit the plaintiff had a cause pending in the Southern District, does he present a reasonable ground for his neglect to file a disclaimer? There might be some force in this contention were it not for the fact that, as appears from Mr. Randolph’s affidavit, the cause in the Southern District was dismissed in December, 1931. Since then the plaintiff had ample time and without embarrassment, other than that caused by the statutory requirement, to file his disclaimer. The motion is granted. Settle order on" }, { "docid": "662091", "title": "", "text": "the floater. But this is not an equivalent of the Winkley spring which operates independently of the grease pressure. The court below erred in finding infringement of claims 12 and 13 by the sale of defendant’s snap-on coupler. Under this point of noninfringement the defendant has also argued that the claims are invalid because anticipated by patent No. 879,880 to Landau. The claims were sustained against a similar attack in Lyman Mfg. Co. v. Bassick Mfg. Co. (C. C. A.) 38 F. (2d) 29, and for reasons with which we concur. It is true that the patent to Landau was not discussed by Judge Denison, though it was in the record; but the Bareus patent, which he did discuss, is a better reference for the defendant than is Landau. 2. It is contended that plaintiff cannot maintain its suit upon any of the claims of the Gullborg patent in suit because- of delay in filing a disclaimer as to claim 12. This claim was hold invalid in the litigation reported as Lyman Mfg. Co. v. Bassick Mfg. Co., 18 F.(2d) 29 (C. C. A. 6). That litigation included six suits, all of which were disposed of in a single opinion on March 23, 1927. Petitions for rehearing were filed in. two of the suits, neither of which, however, involved claim 12. These petitions for rehearing having been denied May 13th, the plaintiff! contends that the time for presenting a petition for certiorari did not expire until August 13th, and that its disclaimer filed on August 29th was well within the period which this court sanctioned as a reasonable time within which to disclaim, in R. Hoe & Co. v. Goss Printing Press Co. (C. C. A.) 31 F.(2d) 565, and Ensten v. Simon, Ascher & Co. (C. C. A.) 38 F.(2d) 71, affirmed, 282 U. S. 445, 51 S. Ct. 207, 75 L. Ed. 453. The defendant, on the other hand, contends that in each of the suits involving claim 12 the mandate was ffled April 23d, so that the time to apply for a writ of certiorari expired July" }, { "docid": "10508083", "title": "", "text": "two claims held invalid for indefiniteness would have left the patentee with only process claims, and with claim 3 which covered a different type of product, not being manufactured by the patentee, and without any claims covering the product which the Circuit Court of Appeals had held to represent a pioneer invention. Thus, where it is necessary to revise the specifications or a claim, or both, in any way except by excising on the basis of separability set forth in the specifications, procedure by way of reissue is the only appropriate remedy. As was said in Hailes v. Albany Stove Co., 123 U.S. 582, at page 587, 8 S.Ct. 262, at page 265, 31 L.Ed. 284, a disclaimer must cover “a separate claim in a patent, or some other distinct and separable matter, which can be exscinded without mutilating or changing what is left standing.” See also Milcor Steel Co. v. George Fuller Co., supra; Altoona Publix Theatres, Inc., v. American Tri-Ergon Corp., supra; Rosemary Mfg. Co. v. Halifax Cotton Mills, Inc., 4 Cir., 288 F. 683; General Motors Corp. v. Rubsam Corp., 6 Cir., 65 F.2d 217; Fruehauf Trailer Co. v. Highway Trailer Co., 6 Cir., 67 F.2d 558. One who invokes the benefits of the disclaimer statute must do so with reasonable promptness after he knows or has reasonable ground for knowing that his patent contains invalid claims. This is because, as we have pointed out, greater liberality is given to one who disclaims than to one who seeks a reissue, and as an offset to this greater liberality, the one disclaiming is expressly required by R.S. § 4922, 35 U.S.C.A. § 71, to proceed promptly under its provisions; whereas, under the reissue statute, only the equitable doctrine of laches applies. However, the time within which one must disclaim varies in different Circuits. In this, the Fourth Circuit, no specific time limit has been set. In some Circuits, thirty days has been held a proper limit, in others sixty. In General Chemical Co. v. Standard Wholesale Phosphate & Acid Works, 4 Cir., 77 F.2d 230, certiorari denied 296" }, { "docid": "662093", "title": "", "text": "23d and the time to disclaim thirty days thereafter. The question is of seasonable action. Ordinarily, thirty days after the time expires to petition for certiorari would seem to give the patentee reasonable opportunity to determine bis course of action, as we said in the Hoe and Ensten Cases. In the case at bar, however, the decision that claim 12 was invalid was announced in an opinion which was subject to review as to other claims until August 13th. We do not think the companion suits can be ignored merely because they did not involve claim 12. Had the writ of certiorari been allowed, the Supreme Court’s decision as- to the other claims might have resulted in such a construction of them as would have cast doubt upon the correctness of the lower court’s disposition of claim 12. It was not an unreasonable delay for the patent owner to await this possibility before determining to file the disclaimer. 3. It is contended that defendant’s sale to Wright of pin fittings of the Alemite type did not eontributorily infringe the claims in suit of either the Gullborg or the Winkley patent. This is based, first, on the argument that they may have been genuine fittings of plaintiff’s manufacture which defendant had procured from purchasers from plaintiff. But defendant offered no proof that such was the fact. It has the burden of proving an implied license, and we regard the plaintiff’s proof as sufficient for a prima facie case. See Lyman Mfg. Co. v. Bassick Mfg. Co., supra; Bassick Mfg. Co. v. Auto Equipment Co,, 13 F.(2d) 463 (C. C. A. 7). Then it is argued that, even if the fittings were spurious, there was no proof of an intent that they should be used in an infringing combination. But intent may be inferred. At the time they were sold, they had no utility except as used in a combination which would infringe the claims in suit. 4. The defendant makes a similar contention with respect to its sales of the Adams grease gun equipped with a suction effect coupler. Besides relying" }, { "docid": "22805914", "title": "", "text": "Mr. Justice McReynolds delivered the opinion of the Court. By an original bill presented to the District Court, Southern District of New York, November 9, 1929, petitioners sought to prevent respondent from further infringing Letters Patent No. 1,313,080, for improvements in knitted caps and to recover damages. They asked a preliminary injunction; affidavits were presented by both sides; the facts are not controverted. It appears— That the patent, 6 claims, issued to Louis H. Ensten August 12, 1919. In the first suit upon it—Ensten v. Rich-Sampliner Co., et al.—commenced in the District Court, Northern District of Ohio, an interlocutory decree, dated May 24, 1922, adjudged claims 1, 3, 4 and 5 valid and infringed; claim 2 invalid. That within 30 days the defendants appealed from so much of that decree as upheld the four claims; the complainant might have but did not appeal. The Circuit Court of Appeals approved the decree so far as challenged, June 20, 1923; the validity of claim 2 was not before it. Rehearing was denied October 4, 1923; mandate issued October 18, 1923. 291 Fed. 1003. That after such remittance the District Court ordered an accounting. The complainant offered to show damages to his exclusive licensee, Lion Knitting Mills Company. As that Company was not party to the cause, the-Master rejected the offer; the court affirmed his action. That on April 30, 1924, Ensten disclaimed as to claim 2 in the Patent Office. Thereafter, he and the Lion Knitting Mills' Company presented a joint bill against the original defendants. A motion to dismiss because of unreasonable neglect and delay in making the disclaimer was sustained April 5, 1926, 13 F. (2d) 132 — Judge West-enhaver. The Circuit Court of Appeals, May 9, 1927, held the second bill was in effect an amendment to the original one; declared the objection based upon failure to disclaim moré promptly moot; reversed the decree of the District Court; and remanded the cause-for appropriate proceedings. Subsequently, the parties settled their differences; the defendant paid substantial damages; and final, decree went for the complainants November 1, 1928. - No facts except" }, { "docid": "3253400", "title": "", "text": "WESTENHAVER, District Judge. TMs suit is based on United States letters patent 1,303,080, issued August 12,1919, to Louis H. Ensten. Claims 1, 3, 4, and 5 are declared on. This is the same patent as was involved in equity ease 573, Ensten v. Rich-Sampliner Co. In that suit it was held that claims 1, 3, 4, and 5 were valid, and that claim 2 was invalid, and on May 24, 1922, an interlocutory decree was entered, awarding a preliminary' injunction and ordering an accounting of profits and damages on the claims held valid, and denied as to claim 2, held invalid. An appeal was taken by defendant, and none by plaintiff, resulting in an affirmance in all respects of the decree of the District Court, June 30, 1923. An application of appellant for a rehearing was denied October 4, 1923. See (C. C. A.) 291 F. 1003. The present suit asserts a right to recover for an infringement alleged in the bill not to be within the issues heard and decided in this prior litigation. Defendants move to dismiss the bill on the ground that the patentee has unreasonably neglected and delayed to file his disclaimer as to claim 2, held invalid because too broad and including moro than that of which he, the patentee, was the original or first inventor or discoverer. A disclaimer was not filed until April 30,1924. Upon an intimation from the court that this motion might present an issue of fact to be decided upon evidence, the parties have stipulated the facts, and have submitted the questions arising on the motion for final decision. The facts so stipulated consist of the full record in equity ease 573, including Ensten’s answers to interrogatories filed February 2, 1925, agreed statement of facts filed April 24,1925, and a certified copy of Ms disclaimer as to claim 2, filed in the Patent Office April 30,1924, and filed herein June 30, 1925. As stated in substance in plaintiffs brief filed February 20,1926, this presents the questions of law and fact to be determined, as if the motion to dismiss were" } ]

[ { "docid": "22656883", "title": "", "text": "which reasonably minded jurors might draw an inference of conspiracy. We reversed, pointing out that the moving parties’ submissions had not foreclosed the possibility of the existence of certain facts from which “it would be open to a jury ... to infer from the circumstances” that there had been a meeting of the minds. Id., at 158-159. Our prior decisions may not have uniformly recited the same language in describing genuine factual issues under Rule 56, but it is clear enough from our recent cases that at the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. As Adickes, swpra, and Cities Service, supra, indicate, there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Cities Service, supra, at 288-289. If the evidence is merely colorable, Dombrowski v. Eastland, 387 U. S. 82 (1967) (per curiam), or is not significantly pro bative, Cities Service, swpra, at 290, summary judgment maybe granted. That this is the proper focus of the inquiry is strongly suggested by the Rule itself. Rule 56(e) provides that, when a properly supported motion for summary judgment is made, the adverse party “must set forth specific facts showing that there is a genuine issue for trial.” And, as we noted above, Rule 56(c) provides that the trial judge shall then grant summary judgment if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. There is no requirement that the trial judge make findings of fact. The inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Petitioners suggest, and we agree, that this standard mirrors the standard" } ]

[ { "docid": "14562252", "title": "", "text": "the Issues Presented Under Fed.R.Civ.P. Rule 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 that the moving party is entitled to a judgment as a matter of law.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). At the summary judgment stage, it is not the role of the judge to weigh the evidence or to evaluate its credibility, but to determine “whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202. There is no issue for trial unless there is sufficient evidence favoring the nonmoving party such that a reasonable jury could return a verdict for that party. Id. A non-moving party may not rest upon mere allegations, general denials, or vague statements. If the non-moving party’s evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Bixler v. Central Penn. Teamsters Health & Welfare Fund, No. 93-7048, 1993 WL 533735 (3d Cir. Dec. 28, 1993); Trap Rock Indus. Inc. v. Local 825, Int’l Union of Operating Engineers, 982 F.2d 884, 980-91 (3d Cir.1992). The substantive law governing the dispute will determine which facts are material, and only disputes over those facts “that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Finally, summary judgment should be granted unless a dispute over a material fact is genuine, which the Court has defined as such that “a reasonable jury could return a verdict for the nonmoving party.” Id. At the motion for partial summary judgment decided in April of 1993, we left open the possibility that the plaintiff might be able to recover damages attributable to the delay in labelling the termination as one of convenience for the government. However," }, { "docid": "10581386", "title": "", "text": "of this Court is upon disputes over material facts; that is, facts likely to affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 107 (1987). The Fifth Circuit stated, “[t]he standard of review is not merely whether there is a sufficient factual dispute to permit the ease to go forward, but whether a rational trier of fact could find for the non-moving party based upon the record evidence before the court.” James, 909 F.2d at 837; see Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986); Boeing Co. v. Shipman, 411 F.2d 365, 374-375 (5th Cir.1969) (en banc). The Supreme Court’s 1986 trilogy of summary judgment cases clarified the test for granting summary judgment. In the first case, Anderson, the Court stated the trial court must consider the substantive burden of proof ■ imposed on the party making the claim. In the case before this Court, the Plaintiff has the burden with respect to each claim and Defendant has the burden with respect to their defenses and claims for affirmative relief. Once Defendant THE demonstrates it is entitled to summary judgment under the law, Plaintiff has the burden of rebutting the proof on the issues of preemption, waiver, and exhaustion of administrative remedies under the Plan. Anderson requires this Court to substantively evaluate the evidence offered by the moving and non-moving party. “[T]he requirement is that there be no genuine issue of material fact.” Id. 477 U.S. at 248, 106 S.Ct. at 2510 (emphasis in original). A dispute is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. In" }, { "docid": "23463767", "title": "", "text": "in rule 56 of the Federal Rules of Civil Procedure. Under Rule 56(c), summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The mere existence of a factual dispute does not by itself preclude the granting of summary judgment. “[T]he requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, 477 U.S. -, -, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211 (1986) (emphasis in original). We recently stated that: An issue is genuine if the evidence supporting its resolution in favor of the party opposing summary judgment, together with any inferences in such party’s favor that the evidence allows, would be sufficient to support a verdict in favor of that party. If, on the other hand, the evidence offered by both the moving and opposing parties would support only one conclusion and, even if all the evidence to the contrary is fully credited, a trial court would be obliged to direct a verdict in favor of the moving party, the issue is not genuine. Professional Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d 218, 222 (5th Cir.1986) (footnotes omitted). See generally Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465 (1984). As to materiality, the Supreme Court has stated that “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Liberty Lobby, — U.S. at -, 106 S.Ct. at 2510, 91 L.Ed.2d at 211. The substantive area of law involved is relevant in determining which facts are material. Id. Furthermore, the existence of a “scintilla of evidence” is not sufficient to defeat a motion for summary judgment. Liberty Lobby, — U.S. at -, 106 S.Ct. at 2512, 91 L.Ed.2d at" }, { "docid": "1101359", "title": "", "text": "v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Supreme Court analyzed the requirements necessary to grant a motion for summary judgment, specifically focusing on what constitutes a “genuine issue of material fact.” Id. at 248, 106 S.Ct. at 2510 (emphasis in original). In determining whether a fact is “material,” the Court stated: As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. Id. (emphasis added). A material fact is “genuine” if a reasonable fact-finder, in assessing the evidence, could possibly return a verdict for the nonmoving party. Id.; Bohm v. Forum Resorts, Inc., 762 F.Supp. 705, 707 (E.D.Mich.1991); Hoffman v. Roberto, 85 B.R. 406, 409 (W.D.Mich.1987). The Court further noted: [I]t is clear enough from our recent cases that at the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial_ [TJhere is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. ... The inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted). In order to grant a summary judgment, the court must examine all facts established by the record before it and conclude that, under the applicable substantive law, no reasonable fact-finder could possibly return a verdict in favor of the nonmoving party. Under such circumstances, no genuine issue of material fact exists" }, { "docid": "7536215", "title": "", "text": "AMENDED ORDER ON MOTION FOR SUMMARY JUDGMENT BUNTON, Chief Judge. BEFORE THIS COURT is the Motion of the Plaintiffs for Summary Judgment in the above-numbered cause. Having considered the Motion, the Defendants’ Response thereto and the Plaintiffs’ Reply, this Court is of the opinion the Motion is meritorious and should be granted. STANDARD ON MOTION FOR SUMMARY JUDGMENT Rule 56(c) of the Federal Rules of Civil Procedure provides for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is entitled to a judgment as a matter of law.” Rule 56(e) provides: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but ... must set forth specific facts showing that there is a genuine issue for trial. Thus, the focus of this Court is upon disputes over material facts; facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 107 (1987), and the cases cited therein. The Supreme Court’s 1986 trilogy of summary judgment cases clarified the test for granting summary judgment. In Anderson v. Liberty Lobby, the Court stated the trial court must consider the substantive burden of proof imposed on the party making the claim. In the case before this Court, the Plaintiffs have the burden with respect to their claims; Defendants have the burden with respect to certain defenses they raise. The Court in Anderson v. Liberty Lobby defined “material” as involving a “dispute over facts which may affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby requires this Court to substantively evaluate the evidence offered by the moving and non-moving parties to determine whether the evidence raises" }, { "docid": "20071841", "title": "", "text": "of law.” Thus, Rule 56(c) sets forth as clear conditions for summary judgment: (1) the absence of genuine dispute as to any material fact; and (2) entitlement to judgment as a matter of law. These requirements are plainly conjunctive. Further, Rule 56(e) provides that the nonmoving party “may not rest upon the mere allegations or denials of the [nonmoving] party’s pleadings____.” Rather, the response of the non-moving party to the motion for summary judgment must set forth, by affidavit or exhibit, “specific facts showing that there is a genuine issue for trial.” The Supreme Court has attempted to define what constitutes a “genuine” issue of material fact: In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), the Court stated that a “dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Thus, “if the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Id. at 249-50, 106 S.Ct. at 2511. Still, in the adjudication of a motion for summary judgment, “the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249, 106 S.Ct.. at 2511. Finally, in that summary judgment “deprives a party of its day in court and the right to present its case to the jury, the district court in examining the record must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party.” Gibson v. American Broadcasting Companies, Inc., 892 F.2d 1128, 1132 (2d Cir.1989). However, the existence of a genuine issue of fact does not in itself defeat a motion for summary judgment; rather, the issue must be one of a material fact. As the Court stated in Anderson, 477 U.S. at 248, 106 S.Ct: at 2510: “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit" }, { "docid": "7766351", "title": "", "text": "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. This materiality inquiry is independent of and separate from the question of the incorporation of the evidentiary standard into the summary judgment determination. That is, while the materiality determination rests on the substantive law, it is the substantive law’s identification of which facts are critical and which facts are irrelevant that governs. Any proof or evidentiary requirements imposed by the substantive law are not germane to this inquiry, since materiality is only a criterion for categorizing factual disputes in their relation to the legal elements of the claim and not a criterion for evaluating the evidentiary underpinnings of those disputes. More important for present purposes, summary judgment will not lie if the dispute about a material fact is “genuine,” that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., — U.S. -, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (citations omitted). See also Celotex Corporation v. Catrett, — U.S.-, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barker v. Henderson, Franklin, Starnes & Holt, 797 F.2d 490 (7th Cir.1986). The Court went on to say that “at the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 106 S.Ct. at 2511. When a properly supported motion for summary judgment is made, the adverse party “must set forth specific facts showing that there is a genuine issue for trial.” Id. There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, or is no more than a scintilla, summary judgment may be granted. The substantive evidentiary standard of proof that" }, { "docid": "10467218", "title": "", "text": "that the moving party is entitled to judgment as a matter of law.” Rule 56(c), Federal Rules of Civil Procedure. The disputed fact(s) must be material. Id. Substantive law determines 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.” Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The dispute must also be genuine. A dispute about a material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 249, 106 S.Ct. at 2510. There is no issue for trial unless there is sufficient .evidence favoring the nonmoving party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. In a civil case, the question is: whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512. The moving party who has the burden of proof on the issue at trial must establish all of . the essential elements of the claim or defense for the court to find that the moving party is entitled to judgment as a matter of law. Fontenot v. Upjohn, 780 F.2d 1190, 1194 (5th Cir.1986); Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986). However, the moving party need not disprove matters on which the opponent has 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). Thus, summary judgment is proper if the nonmoving party fails to make a showing sufficient to establish the existence of an essential element of his case on which’ he will bear the" }, { "docid": "22800470", "title": "", "text": "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.” In considering a motion for summary judgment, the court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. SEC v. Blavin, 760 F.2d 706, 710 (6th Cir.1985); Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.1979). The moving party has the burden of showing conclusively that no genuine issue of material fact exists. Smith, 600 F.2d at 63. Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial a reasonable jury could return a verdict for the non-moving party. Id. 106 S.Ct. at 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties’ differing versions of the dispute at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968). The judge’s function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue a proper jury-question, and not to judge the evidence and make findings of fact. “[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 106 S.Ct. at 2511. We hold that genuine issues of material fact existed and that the district court’s grant of summary judgment was inappropriate. Specifically, the" }, { "docid": "8995896", "title": "", "text": "to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The existence of a material question of fact is itself a question of law that the district court is bound to consider before granting summary judgment. John v. State of La. (Bd. Of T. for State C. & U.), 757 F.2d 698, 712 (5th Cir.1985). A judge’s function at the summary judgment stage is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although Rule 56 is peculiarly adapted to the disposition of legal questions, it is not limited to that role. Professional Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d 218, 222 (5th Cir.1986). “The mere existence of a disputed factual issue, therefore, does not foreclose summary judgment. The dispute must be genuine, and the facts must be material.” Id. “With regard to ‘materiality’, only those disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment.” Phillips Oil Company, v. OKC Corporation, 812 F.2d 265, 272 (5th Cir.1987). Where “the summary judgment evidence establishes that one of the essential elements of the plaintiffs cause of action does not exist as a matter of law, ... all other contested issues of fact are rendered immaterial.” See Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. Topalian v. Ehrman, 954 F.2d 1125, 1138 (5th Cir.1992). In making its determinations of fact on a motion for summary" }, { "docid": "2050446", "title": "", "text": "Cir.1969)). On a 12(b)(6) motion, of course the Court must view all well-pleaded facts in the light most favorable to the non-moving party. However, “once the proceeding becomes one for summary judgment, the moving party’s burden changes and he is obliged to demonstrate that there exist no genuine issue as to any material fact and that he is entitled to judgment as a matter of law.” 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 at 506 (1990). In this case, Defendants’ motions, since they refer to material outside the four corners of the complaint, are properly considered as motions for summary judgment. Rule 56(c) of the Federal Rules of Civil Procedure provides for summary judgment if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The existence of a material question of fact is itself a question of law that the district court must consider before granting summary judgment. John v. State of La. (Bd. of Trustees for State Colleges & Universities), 757 F.2d 698, 712 (5th Cir.1985). At the summary judgment stage, this Court is not to weigh evidence and resolve issues of fact, but instead must determine whether there is a genuine issue for trial. A genuine issue for trial exists if there is sufficient evidence to justify a jury verdict for the non-moving party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be proper. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although Rule 56 is peculiarly adapted to the disposition of legal questions, it is not limited to that role. Professional Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d 218, 222 (5th Cir.1986). “The mere existence of a disputed factual issue, therefore, does not foreclose summary judgment. The" }, { "docid": "2050447", "title": "", "text": "L.Ed.2d 265 (1986). The existence of a material question of fact is itself a question of law that the district court must consider before granting summary judgment. John v. State of La. (Bd. of Trustees for State Colleges & Universities), 757 F.2d 698, 712 (5th Cir.1985). At the summary judgment stage, this Court is not to weigh evidence and resolve issues of fact, but instead must determine whether there is a genuine issue for trial. A genuine issue for trial exists if there is sufficient evidence to justify a jury verdict for the non-moving party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be proper. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although Rule 56 is peculiarly adapted to the disposition of legal questions, it is not limited to that role. Professional Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d 218, 222 (5th Cir.1986). “The mere existence of a disputed factual issue, therefore, does not foreclose summary judgment. The dispute must be genuine, and the facts must be material.” Id. “With regard to ‘materiality’, only those disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment.” Phillips Oil Company v. OKC Corporation, 812 F.2d 265, 272 (5th Cir.1987). Where “the summary judgment evidence establishes that one of the essential elements of the plaintiffs cause of action does not exist as a matter of law, ... all other contested issues of fact are rendered immaterial.” Topalian v. Ehrman, 954 F.2d 1125, 1138 (5th Cir.1992) (citing Celotex, 477 U.S. at 323, 106 S.Ct at 2552). In making its determinations of fact on a motion for summary judgment, the Court must view the evidence submitted by the parties in a light most favorable to the non-moving party. McPherson v. Rankin, 736 F.2d 175, 178 (5th Cir.1984). In order to prevail, the moving party must demonstrate the lack of a genuine issue of material fact. Union Planters Nat. Leasing v. Woods, 687 F.2d 117 (5th Cir.1982). “Rule 56" }, { "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": "23463768", "title": "", "text": "one conclusion and, even if all the evidence to the contrary is fully credited, a trial court would be obliged to direct a verdict in favor of the moving party, the issue is not genuine. Professional Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d 218, 222 (5th Cir.1986) (footnotes omitted). See generally Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465 (1984). As to materiality, the Supreme Court has stated that “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Liberty Lobby, — U.S. at -, 106 S.Ct. at 2510, 91 L.Ed.2d at 211. The substantive area of law involved is relevant in determining which facts are material. Id. Furthermore, the existence of a “scintilla of evidence” is not sufficient to defeat a motion for summary judgment. Liberty Lobby, — U.S. at -, 106 S.Ct. at 2512, 91 L.Ed.2d at 214. In two eases last term, the Court noted that the standard for summary judgment “mirrors” the standard for a directed verdict under Fed.R.Civ.P. 50(a). See Liberty Lobby, — U.S. -, 106 S.Ct. at 2511, 91 L.Ed.2d at 213; Celotex Corporation v. Catrett, 477 U.S. -, -, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265, 273-274 (1986). The primary difference in the two motions comes from when they are used; “in essence, though, the inquiry under each is the same.” Liberty Lobby, — U.S. at -, 106 S.Ct. at 2512, 91 L.Ed.2d at 214. Consequently, in order to defeat a summary judgment motion, there must be evidence whose reasonable inferences support the nonmoving party’s position. Professional Managers, 799 F.2d at 223. In this case the burden of persuasion at trial is on the nonmoving party, St. Amant. In order to obtain summary judgment, therefore, the defendants must either submit affirmative evidence that negates an essential element of St. Amant’s claim or, alternatively, demonstrate that St. Amant’s evidence is insufficient to establish an essential element of his" }, { "docid": "7485157", "title": "", "text": "Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), the Court stated that a “dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Thus, “if the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Id. at 249-50, 106 S.Ct. at 2511. The existence of such a genuine issue of fact does not in itself defeat a motion for summary judgment, however; rather, the issue must be of a material fact. As the Court further stated in Anderson: “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.” Id. at 248, 106 S.Ct. at 2510. Thus, in order to evaluate the materiality of any disputed facts, this court must examine the substantive law underlying plaintiffs causes of action; it is only with reference to those governing standards that this court may determine whether or not the entry of summary judgment is appropriate. Finally, in considering a motion for summary judgment, “the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249, 106 S.Ct. at 2511. Insofar as granting a motion for summary judgment “deprives a party of its day in court and the right to present its cause to a jury, the district court in examining the record must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party.” Gibson v. American Broadcasting Cos., 892 F.2d 1128, 1132 (2d Cir.1989); see also Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 2556 n. 2, 91 L.Ed.2d 265 (1986); Taggart v. Time, Inc., 924 F.2d 43, 45-46 (2d Cir.1991). As these rules make clear and contrary to claimants’ assertions, they as moving parties bear the burden of proof on" }, { "docid": "8995897", "title": "", "text": "Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although Rule 56 is peculiarly adapted to the disposition of legal questions, it is not limited to that role. Professional Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d 218, 222 (5th Cir.1986). “The mere existence of a disputed factual issue, therefore, does not foreclose summary judgment. The dispute must be genuine, and the facts must be material.” Id. “With regard to ‘materiality’, only those disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment.” Phillips Oil Company, v. OKC Corporation, 812 F.2d 265, 272 (5th Cir.1987). Where “the summary judgment evidence establishes that one of the essential elements of the plaintiffs cause of action does not exist as a matter of law, ... all other contested issues of fact are rendered immaterial.” See Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. Topalian v. Ehrman, 954 F.2d 1125, 1138 (5th Cir.1992). In making its determinations of fact on a motion for summary judgment, the Court must view the evidence submitted by the parties in a light most favorable to the non-moving party. McPherson v. Rankin, 736 F.2d 175, 178 (5th Cir.1984). The moving party has the duty to demonstrate the lack of a genuine issue of material fact and the appropriateness of judgment as a matter of law to prevail on his motion. Union Planters Nat. Leasing v. Woods, 687 F.2d 117 (5th Cir.1982). The movant accomplishes this by informing the court of the basis of its motion, and by identifying portions of the record which highlight the absence of genuine factual issues. Topalian, 954 F.2d at 1131. “Rule 56 contemplates a shifting burden: the nonmovant is under no obligation to respond unless the movant discharges [its] initial burden of demonstrating [entitlement to summary judgment].” John, 757 F.2d at 708. “Summary judgment cannot be supported solely on the ground that [plaintiff] failed to respond to defendants’ motion for summary judgment,” even in light of a Local Rule of the court mandating such for failure to respond to" }, { "docid": "21361269", "title": "", "text": "fact subject to dispute] that a reasonable jury[, with respect to such factual dispute,] could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 ([U.S.] 1986); Equimark Comm. Finance Co. v. C.I.T. Financial Serv. Corp., 812 F.2d 141, 144 (3d Cir.1987). If evidence is “merely colorable” or “not significantly probative,” summary judgment may be granted. Anderson, 477 U.S. at 249-51, 106 S.Ct. at 2511; Equimark, 812 F.2d at 144. Where the record, taken as a whole, could not “lead a rational trier of fact to find for the non-moving party, summary judgment is proper.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 ([U.S.] 1986). Hankins v. Temple University, 829 F.2d 437, 440 (3rd Cir.1987). Also important to note is that, even if a genuine factual dispute is shown to exist, such showing may not necessarily suffice to preclude the entry of a summary judgment. Indeed, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the re quirement 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. Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2510 (emphasis theirs). All of the foregoing notwithstanding, “at the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id., 477 U.S. at 249, 106 S.Ct. at 2511. Therefore, any evidence that the movant presents in an attempt to carry its initial summary judgment burden “must be viewed in the light most favorable to the non-moving party.” National State Bank, 979 F.2d at 1581 (citing O’Donnell v. United States, 891" }, { "docid": "8995895", "title": "", "text": "seed and the entire line of Roundup herbicide products. Very broadly broken down, the principal foci of the Scruggses’ attack are Monsanto’s agreements with its seed partners, Monsanto’s agreements with seed and herbicide dealers and Monsanto’s dealings with individual growers. They contend Monsanto imposed restrictive terms at each level of the market for its technologies and that those restrictive terms amounted to unlawful restraints on trade. That same conduct, they argue, enabled Monsanto to extend its monopoly power in the markets for traits, seed and glyphosate herbicide. After ample opportunity for discovery, Monsanto filed its Motion for Summary Judgment. The motion seeks dismissal of the defendants’ federal and state antitrust claims as denominated in Counts Six, Seven and Nine. The motion also seeks judgment as a matter of law on the Scruggses’ affirmative defense of patent misuse as denominated in Count Eight. The motion has been fully briefed and the Court is ready to rule. STANDARD OF REVIEW Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment where “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The existence of a material question of fact is itself a question of law that the district court is bound to consider before granting summary judgment. John v. State of La. (Bd. Of T. for State C. & U.), 757 F.2d 698, 712 (5th Cir.1985). A judge’s function at the summary judgment stage is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby," }, { "docid": "6315601", "title": "", "text": "the present case. The Court discusses the defendant’s motion below. II. Legal Standard A court may grant summary judgment only if the materials properly before the court “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party has the burden of showing conclusively that no genuine issue of material fact exists. 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). In deciding whether the moving party has met this burden, a court must view the facts and all inferences drawn from them in the light most favorable to the nonmov-ing party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). A factual dispute precludes summary judgment only if it is material, that is, if it relates to a matter essential to adjudication. The dispute must concern facts that, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The factual dispute must also be genuine. The facts must be such that if proven at trial a reasonable jury could return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. 2505. “The disputed issue does not have to be resolved conclusively in favor of the nonmoving party, but that party is required to present significant probative evidence that makes it necessary to resolve the parties’ differing versions of the dispute at trial.” 60 Ivy Street, 822 F.2d at 1435 (citing First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Thus, the judge’s function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue a proper jury question. “[A]t the summary judgment stage the judge’s function is not himself to" }, { "docid": "2050448", "title": "", "text": "dispute must be genuine, and the facts must be material.” Id. “With regard to ‘materiality’, only those disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment.” Phillips Oil Company v. OKC Corporation, 812 F.2d 265, 272 (5th Cir.1987). Where “the summary judgment evidence establishes that one of the essential elements of the plaintiffs cause of action does not exist as a matter of law, ... all other contested issues of fact are rendered immaterial.” Topalian v. Ehrman, 954 F.2d 1125, 1138 (5th Cir.1992) (citing Celotex, 477 U.S. at 323, 106 S.Ct at 2552). In making its determinations of fact on a motion for summary judgment, the Court must view the evidence submitted by the parties in a light most favorable to the non-moving party. McPherson v. Rankin, 736 F.2d 175, 178 (5th Cir.1984). In order to prevail, the moving party must demonstrate the lack of a genuine issue of material fact. Union Planters Nat. Leasing v. Woods, 687 F.2d 117 (5th Cir.1982). “Rule 56 contemplates a shifting burden: the nonmovant is under no obligation to respond unless the movant discharges [its] initial burden of demonstrating [entitlement to summary judgment].” John, 757 F.2d at 708. “Summary judgment cannot be supported solely on the ground that [plaintiff] failed to respond to defendants’ motion for summary judgment,” even in light of a Local Rule of the court mandating such for failure to respond to an opposed motion. Id. at 709. Once a properly supported motion for summary judgment is presented, however, the nonmoving party must rebut with “significant probative” evidence. Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 114 (5th Cir.1978). In other words, “the nonmoving litigant is required to bring forward ‘significant probative evidence’ demonstrating the existence of a triable issue of fact.” In Re Municipal Bond Reporting Antitrust Lit., 672 F.2d 436, 440 (5th Cir.1982). To defend against a proper summary judgment motion, one may not rely on mere denial of material facts nor on unsworn allegations in the pleadings or arguments and assertions in briefs or legal memoranda." } ]

[ { "docid": "22334313", "title": "", "text": "1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980). Not until the United States Supreme Court’s decision in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), were tenured public employees held entitled to a pretermination hearing consisting of “oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Id. at 546, 105 S.Ct. at 1495. Subsequent to this decision, Ohio courts have recognized the right public employees have to a pretermination hearing. See, e.g., Csanyi v. Cuyahoga County Comm., 29 Ohio App.3d 37, 502 N.E.2d 700 (1986). We have also recently held that Loudermill should be given retroactive effect. Gurish v. McFaul, 801 F.2d 225, 227 (6th Cir.1986). This subsequent recognition of the right to a pretermination hearing is of scant assistance to plaintiff because he failed to preserve his claim. Nothing prevented plaintiff from arguing to the state courts that he was entitled to such a hearing. The fact that the right was not recognized until after plaintiff’s state action was resolved does not mean that he could not have raised the issue during the state litigation. Plaintiff has had the opportunity to fully and fairly litigate his claim on the merits in state court. There is no reason to allow him to reopen his claim in the federal courts. The district court did not err in granting summary judgment in favor of defendants. B. Plaintiff next asserts that the district court erred in granting summary judgment in favor of defendants on the conspiracy claim. It is well-settled that conspiracy claims must be pled with some degree of specificity and that vague and conclusory allegations unsupported by material facts will not be sufficient to state such a claim under § 1983. See, e.g., Jaco v. Bloechle, 739 F.2d 239, 245 (6th Cir.1984) (conspiracy claim properly dismissed where “complaint merely alleged broad conclusory negligence language void of the factual allegations necessary to support a conspiracy theory”). Plaintiffs allegations of conspiracy are contained in two paragraphs of his amended" } ]

[ { "docid": "23161994", "title": "", "text": "F.3d 1030, 1035 (8th Cir.2005); see also O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996) (prima facie case requires evidence adequate to create inference of discrimination, which cannot be drawn from the replacement of one worker with another worker insignificantly younger). Anderson does not contest that an older driver took over his route upon his termination. Anderson argued below instead that “similarly situated younger employees were not subject to termination ... for similar minor accidents which may or may not have gone unreported and/or investigated.” Even if we were to assume that he could establish a prima facie case on this argument, it fails to establish pretext. He has not provided sufficient, specific evidence of disparate treatment to survive summary judgment. Anderson advanced no arguments to the district court regarding pretext as to age discrimination different from those offered as to his race discrimination claim, which we hold insufficient for the reasons stated above. Summary judgment was proper as to Anderson’s age discrimination claim as well. III. Conclusion For the foregoing reasons, we affirm. We deny Durham’s motion to strike improper factual allegations as moot based on our holdings here. . Anderson also brought claims of retaliation under § 1981, Title VII, and the ADEA. The district court determined that Anderson had failed to exhaust remedies as to the Title VII and ADEA retaliation claims and granted summary judgment on the merits as to the § 1981 retaliation claim. Anderson made only passing reference to retaliation in his opening brief, and we consider any challenge to the district court’s grant of summary judgment as to the retaliation claims waived. See United States v. Howard, 532 F.3d 755, 760 (8th Cir.2008); Ahlberg v. Chrysler Corp., 481 F.3d 630, 634 (8th Cir.2007). . The Honorable Greg Kays, United States District Judge for the Western District of Missouri. . The record indicates several of Anderson’s monitors complained to management about his driving at different times during Anderson’s employment. Additionally, Durham submitted an affidavit from a child passenger who witnessed Anderson fall asleep and complained" }, { "docid": "948180", "title": "", "text": "punitive damages against it. E. This Court Lacks Subject Matter Jurisdiction Over The State Law Claims Brought Against Defendants Rahe, Aaron And Hogan. Federal District Courts do not possess jurisdiction over state law causes of action against state employees without a finding concerning the applicability of state law immunity by the Ohio Court of Claims. See O.R.C. § 2743.02(F); see also, Haynes v. Marshall, 887 F.2d 700, 704-05 (6th Cir.1989). Plaintiff requests this court to stay her state law claims pending a decision by the Ohio Court of Claims rather than dismiss them. The court declines plaintiffs request because it lacks subject matter jurisdiction over the claims and therefore, cannot stay claims which are not properly before it. See Parks v. Wilkins, 716 F.Supp. 1028, 1031 (S.D.Ohio 1988). F. Plaintiff May Properly Maintain An Action Against The Defendants Under 42 U.S.C. § 1985. The defendants contend that plaintiff cannot maintain an action under section 1985(3) because of the “intracorporate conspiracy” doctrine. This doctrine asserts that “if all of the defendants are members of the same collective entity, there are not two separate people to form a conspiracy.” Hull v. Cuyahoga Valley Board of Education, 926 F.2d 505, 510 (6th Cir.1991). The Sixth Circuit recently created an exception to this doctrine. The court said, “when employees act outside the course of their employment, they and the corporation may form a conspiracy under 42 U.S.C. § 1985(3).” Johnson v. Hills & Dales Gen. Hosp., et al., 40 F.3d 837 (6th Cir.1994). Taking the plaintiffs allegations as true, the court finds that plaintiff pleads facts sufficient to show that defendants acted outside of their scope of employment. Typically actions such as managerial decisions and the implementation -or ratification thereof are protected within the scope of employment. Yet, if the decision was part of a conspiratorial plan to limit access to documents, related to plaintiffs complaint, to the co-conspirators and then those documents are destroyed by the co-conspirators, those activities fall outside the scope of employment and thereby provide an exception to the intracorporate' conspiracy doctrine. Defendants argue, also, that plaintiffs claims do not" }, { "docid": "18164102", "title": "", "text": "also Francis v. Chemical Banking Corp., 62 F.Supp.2d 948, 957-58 (E.D.N.Y.1999), aff'd 213 F.3d 626. Assuming as the Court must for purposes of this motion that Anderson’s account of the September 19, 1999 incident is accurate, it goes without saying that Department Head Duffy’s conduct was improper, his verbal use of the racial epithet, “worthless nigger” was reprehensible and Anderson’s termination may have been unwarranted. However, as discussed supra, the record indicates that Defendants conducted an investigation into the incident, addressed Duffy regarding his conduct and upon the conclusion of the investigation, reinstated Anderson with full back pay and benefits. Under such circumstances, the evidence fails to give rise to a reasonable inference of race discrimination in connection with Anderson’s discharge. See, e.g., Stembridge v. City of New York, 88 F.Supp.2d 276, 285-86 (S.D.N.Y.2000) (African-American employee’s suspension without pay resulting from an altercation with his supervisor did not occur in circumstances giving rise to inference of discrimination where employer scheduled disciplinary hearing to address employee’s allegations but plaintiff chose not to participate in the process). With respect to Anderson’s transfer upon reinstatement. Anderson has not presented any evidence that this alleged employment action was racially motivated. Anderson has not alleged that he was subjected to racially derogatory comments in connection with the transfer nor has he proffered any other evidence of racial animus in this regard. Under such circumstances, the evidence does not support a reasonable inference of discrimination as it relates to his reinstatement. See Ticali, 41 F.Supp.2d at 264-65. Hence, because Anderson cannot show that he has suffered an adverse employment action that was a product of discriminatory animus, this Court finds that Plaintiffs have failed to establish a prima facie case of discriminatory discharge. Accordingly, the Court grants summary judgment in favor of Defendants on the discriminatory discharge claim brought under Title VII, § 1981 and the NYSHRL and dismisses Counts 1, 2 and 4 of the complaint. (2) Retaliation In Counts 3 and 5 of the complaint, Plaintiffs allege that Defendants terminat ed Anderson’s employment in retaliation for his complaints of discrimination in violation of Title" }, { "docid": "11502852", "title": "", "text": "plaintiff must demonstrate “both that the [proffered] reason was false, and that discrimination was the real reason.” Hicks, 509 U.S. at 515, 113 S.Ct. 2742. As set forth above, ABI has offered substantial credible evidence that Anderson’s employment was terminated for legitimate, nondiscriminatory reasons: the submission of false reports and violation of the terms of his suspension. This satisfies ABI’s burden of production, leaving Anderson with the burden of persuasion that ABI’s nondiscriminatory reasons were merely pretextual. However, there is insufficient evidence to support a showing of pretext. First, Cloud, who made the decision to fire Anderson, was the same person who twice promoted him. This “strongly suggests] that invidious discrimination was unlikely.” Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir.1997). Second, Cloud did not unilaterally decide to terminate Anderson’s employment. Williams, who had equal employment compliance responsibilities, assisted in coordinating the investigation of Anderson’s reports, and determined that Anderson had falsified documents and had been insubordinate. That Williams was a member of Anderson’s protected class and was charged with the responsibility of ensuring that any decisions regarding Anderson’s employment were made in compliance with ABI’s equal-employment-opportunity concerns and policies further weakens the inference of discrimination. See Marlow v. Office of Court Admin., 820 F.Supp. 753, 757 (S.D.N.Y.1993), aff'd, 22 F.3d 1091 (2d Cir.); Toliver v. Community Action Comm’n to Help the Economy, Inc., 613 F.Supp. 1070 (S.D.N.Y.1985), aff'd, 800 F.2d 1128 (2d Cir.) (if decision-maker is in same protected class as plaintiff, claims of discrimination become less plausible). A conclusory allegation by Anderson that he must have been a victim of discrimination because he was black, and the second black salesman to have been discharged, does not supply a factual basis for inference sufficient to defeat ABI’s motion for summary judgment. See Meiri, 759 F.2d at 998. “To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases.” Id. Anderson also has urged that ABI treated him differently from two other employees, Douglas Mackey (“Mackey”) and" }, { "docid": "948179", "title": "", "text": "into the 180 day period, plaintiff may still maintain her action [on all claims] even though singlé discriminatory acts pri- or to the 180 day period are barred. Id. at 430. If subsequent identifiable acts of discrimination occurred within the critical time period and were related to the time-barred incident, the bar does not apply. Id. The Sixth Circuit recently reaffirmed the “continuing violation” doctrine in Hull v. Cuyahoga Valley Board of Education, 926 F.2d 505 (6th Cir.1991). Plaintiff filed her EEOC complaint on December 1,1993. So, her complaint regarding the June 5-7, 1993 actions by defendants are timely. Since one of the alleged incidents fell within the 180 day period for filing an EEOC complaint, then under the “continuing violation” doctrine this court has jurisdiction over all of plaintiffs Title VII claims because they are construed as timely filed. D. Punitive Damages Under Title VII Are Not Statutorily Permissible Against A Government Agency. Since this court finds that CPI qualifies as a state government agency, neither party disputes that 42 U.S.C. § 1981a.(b)(l) prohibits punitive damages against it. E. This Court Lacks Subject Matter Jurisdiction Over The State Law Claims Brought Against Defendants Rahe, Aaron And Hogan. Federal District Courts do not possess jurisdiction over state law causes of action against state employees without a finding concerning the applicability of state law immunity by the Ohio Court of Claims. See O.R.C. § 2743.02(F); see also, Haynes v. Marshall, 887 F.2d 700, 704-05 (6th Cir.1989). Plaintiff requests this court to stay her state law claims pending a decision by the Ohio Court of Claims rather than dismiss them. The court declines plaintiffs request because it lacks subject matter jurisdiction over the claims and therefore, cannot stay claims which are not properly before it. See Parks v. Wilkins, 716 F.Supp. 1028, 1031 (S.D.Ohio 1988). F. Plaintiff May Properly Maintain An Action Against The Defendants Under 42 U.S.C. § 1985. The defendants contend that plaintiff cannot maintain an action under section 1985(3) because of the “intracorporate conspiracy” doctrine. This doctrine asserts that “if all of the defendants are members of the same" }, { "docid": "16431082", "title": "", "text": "receive the letter until February 17, 1998. By that time, the plaintiffs had filed a complaint against the city and its commissioners and the mayor never responded to the plaintiffs’ request for a hearing. On May 5, 1998, the district court granted defendants’ motion for summary judgment on all of plaintiffs’ federal claims and declined to exercise its supplemental jurisdiction over plaintiffs’ state law claims. The plaintiffs timely appealed. II. Discussion Plaintiffs contend that the district court erred in finding that the defendants were entitled to summary judgment on the plaintiffs’ claims that they were deprived of their property and liberty interests without due process of law by the termination proceedings conducted by the board of commissioners. This court reviews a district court’s decision to grant summary judgment de novo. See Soper v. Hoben, 195 F.3d 845, 850 (6th Cir.1999). If there are no material factual disputes and the moving party is entitled to judgment as a matter of law, we will affirm the district court’s judgment. See Fed.R.Civ.P. 56(c). In reviewing the defendants’ summary judgment motion this court must construe the evidence and make all inferences in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). A. Property Interest Plaintiffs argue that they had a property interest in continued employment with the City of Niota. Because the board dismissed them from employment without notice and an opportunity to be heard prior to the effective date of termination they contend that they were denied due process of law. See Board of Regents v. Roth, 408 U.S. 564, 570 n. 7, 92 S.Ct. 2701, 2705 n. 7, 33 L.Ed.2d 548 (1972) (“Before a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing.”). Plaintiffs base their property interest on an employee rule promulgated by the board. This rule states that “[a] city employee may be terminated for any just cause at the discretion of the board.” Plaintiffs contend that this statement modified their employment at-will and established" }, { "docid": "20730201", "title": "", "text": "part: [N]o officer or employee shall be liable in any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer’s or employee’s actions were manifestly outside the scope of his employment or official responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner. Ohio Revised Code § 2743.02(F) provides in relevant part: A civil action against an officer or employee ... that alleges that the officer’s or employee’s conduct was manifestly outside the scope of the officer’s or employee’s employment or official responsibilities, or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner shall first be filed against the state in the court of claims, which has exclusive, original jurisdiction to determine, initially, whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code. Both provisions work in tandem. As this court observed in Haynes v. Marshall, 887 F.2d 700 (6th Cir.1989): Ohio law requires that, as a condition precedent to asserting a cause of action against a state employee in his individual capacity, the Court of Claims must first determine that the employee is not entitled to the immunity provided for in Revised Code section 9.86. Prior to that condition being satisfied, then, there is no claim under Ohio law upon which relief may be granted against state employees in their individual capacities. 887 F.2d at 705. As the district court observed, there was no evidence presented that an Ohio Court of Claims has determined that the defendants were not entitled to immunity. The district court therefore lacked jurisdiction to hear the state claims. Accordingly, the district court properly dismissed the state law claims. III. For the foregoing reasons, we AFFIRM the judgment of the district court. . Because Todd settled with plaintiffs before the appeal, the Court did not squarely address § 1981 liability of state actors acting in their individual capacity. . Justice O’Connor announced the" }, { "docid": "16431081", "title": "", "text": "that he was dismissed for unsatisfactory behavior. Immediately after this termination decision was made, defendant Lee made a motion to dismiss Anderson with the stated reason being “conflict of interest.” Anderson was employed by both the Fire and Police Departments at that time. Also, his wife was a commissioner on the board. Defendant Lee stated that the conflict was due to his wife’s being on the board, but when the mayor assumed that the basis for the motion was Anderson’s employment with both the police and fire departments, none of the commissioners contradicted her. The motion to dismiss Anderson was passed by a 3 to 2 vote. On February 12,1998, plaintiffs mailed a letter to the mayor of Niota requesting a name-clearing hearing arising out of the comments made at the board meeting. The letter stated that the mayor should notify the plaintiffs of her decision by February 16, 1998. If the plaintiffs had not heard from the mayor by that date, the letter stated that they would take further action. The mayor did not receive the letter until February 17, 1998. By that time, the plaintiffs had filed a complaint against the city and its commissioners and the mayor never responded to the plaintiffs’ request for a hearing. On May 5, 1998, the district court granted defendants’ motion for summary judgment on all of plaintiffs’ federal claims and declined to exercise its supplemental jurisdiction over plaintiffs’ state law claims. The plaintiffs timely appealed. II. Discussion Plaintiffs contend that the district court erred in finding that the defendants were entitled to summary judgment on the plaintiffs’ claims that they were deprived of their property and liberty interests without due process of law by the termination proceedings conducted by the board of commissioners. This court reviews a district court’s decision to grant summary judgment de novo. See Soper v. Hoben, 195 F.3d 845, 850 (6th Cir.1999). If there are no material factual disputes and the moving party is entitled to judgment as a matter of law, we will affirm the district court’s judgment. See Fed.R.Civ.P. 56(c). In reviewing the defendants’ summary" }, { "docid": "6315603", "title": "", "text": "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” 60 Ivy Street, 822 F.2d at 1436 (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505). Accordingly, viewing the evidence in the light most favorable to the nonmoving party, the court should determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251, 106 S.Ct. 2505. III. Analysis The plaintiff alleges age and sex discrimination under the ADEA and Title VII. She also alleges age and sex discrimination under Ohio Rev.Code §§ 4112.02 et seq. Both the federal and state claims for age and sex discrimination are analyzed using the McDonnell Douglas standard. Sherman v. American Cyanamid Co., 996 F.Supp. 719, 724-25 (N.D.Ohio 1998); Kohmescher v. Kroger Co., 61 Ohio St.3d 501, 504, 575 N.E.2d 439, 441-42 (1991); Therefore, the Court combines its analysis of Clevidence’s federal and state claims for age and sex discrimination. A. Adequacy of the EEOC Charge As a preliminary matter, the Court dismisses the parts of Clevidence’s age and sex discrimination claims that allege Wayne Bank denied her assistance it gave to younger and male employees. A district court does not have subject matter jurisdiction to hear an ADEA or Title VII claim unless the claimant explicitly filed the claim in an EEOC charge or the claim can reasonably be expected to grow out of an EEOC charge. Abeita v. Trans-America Mailings, Inc., 159 F.3d 246, 254 (6th Cir.1998); Davis v. Sodexho Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir.1998). The purpose of filing a charge of discrimination is to trigger the investigatory and conciliatory procedures of the EEOC so the Commission can attempt to obtain voluntary compliance with the law. Davis, 157 F.3d at 463. The EEOC’s investigatory and conciliatory procedures notify potential defendants of the nature of a plaintiffs claims and provide them the opportunity to settle the claims before the EEOC rather than litigate them. Id." }, { "docid": "22434988", "title": "", "text": "of his filing the action in the Court of Claims. Id. at 1318-20. Much like Turker contends now, the plaintiff in Thomson argued that the Lea-man court erroneously and unduly interpreted the O.C.C.A as pertaining to federal causes of action. However, the Thomson court rejected this argument, noting that a “panel of this Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an in consistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.” Id. at 1320 (quoting Salmi P. Secretary of Health and Human Servs., 774 F.2d 685, 689 (6th Cir.1985)). Because we are bound to follow both Lea-man and Thomson, we agree with the district court’s finding that Turker waived any monetary claims against the defendants in federal court when she filed her action in the Court of Claims. Thus, we conclude that the district court was correct when it dismissed Turker’s monetary damages claims against the ODRC and its employees. We must make one addendum to the above discussion. Ohio has created a limited exception to the rule that state employees may not be sued in their official capacities. As set forth in § 2743.02(A)(1), Ohio state employees can be sued for damages in their official capacities if their actions were “manifestly outside the scope of [their] office or employment or [they] acted with, malicious purpose, in bad faith, or in a wanton and reckless manner.” The determination of whether a state employee’s actions were ultra vires or malicious is to be made exclusively by the Ohio Court of Claims. See Ohio Rev.Code § 2743.02(F); Thomson, 65 F.3d at 1318 n. 3; Haynes v. Marshall, 887 F.2d 700, 704 (6th Cir.1989). The district court noted that at the time it was considering the motion to dismiss, the Ohio Court of Claims had not yet determined whether the defendants’ alleged actions were taken outside the scope of their employment, or with a malicious purpose, in bad faith or in a wanton or reckless manner. Should the Ohio Court of" }, { "docid": "8932579", "title": "", "text": "long lapse of time “between plaintiffs employment termination and the purported sexual advances raises serious questions about a causal nexus”); compare e.g., Tomka v. Seiler, 66 F.3d at 1308 (finding evidence to support an inference of discrimination where plaintiffs protected act occurred three months in one instance and three weeks in another, before the adverse employment action); Corrigan v. Labrum & Doak, 1997 WL 76524 at *7 (finding an inference of harassment where the supervisor began treating plaintiff in a hostile manner within days after she rejected his advances and “within less than three months she lost her job”). Moreover, ACS conducted two separate investigations into Adeniji’s improper behavior, at which impartial hearing officers, whom Adeniji does not allege were biased or otherwise influenced by Anderson, determined that Adeniji’s threatening and intimidating conduct warranted dismissal. (See ACS Rule 56.1 Stmt. ¶¶26, 30, 34, 37; Ligorner Aff.Exs. N, Q, U, X.) At neither of these hearings did Adeniji claim that Anderson sexually harassed him or filed charges in retaliation for Adeniji’s refusal to comply with her sexual demands. The hearing officers’ lack of awareness of any alleged personal relationship between Ade-niji and Anderson, coupled with the fact that Anderson was not involved with either of the hearings that resulted in Adeniji’s dismissal, further weakens, if not entirely disproves Adeniji’s theory that Anderson caused his dismissal. See, e.g., Llampallas v. Mini-Circuits, Lab., Inc., 163 F.3d 1236, 1249-51 (11th Cir.1998) (no causal connection between sexual harassment and adverse employment action where manager “did not know ... that [supervisor’s] threat [to quit if plaintiff was not fired] was motivated by a discriminatory animus towards [plaintiff.] Thus, [manager] was not ‘on notice’ that [supervisor] could be scheming against [plaintiff] based on [plaintiffs] sex. [Plaintiff], although she had the opportunity to do so, failed to inform [manager] of her relationship with [supervisor] and of the information she possessed that would have put [manager] on notice that [supervisor’s] threat may have been motivated by a discriminatory animus.”) Adeniji has not presented any evidence that Anderson, or ACS, disciplined or terminated him because of Anderson’s alleged sexual interest" }, { "docid": "3676697", "title": "", "text": "the affidavits and testimony of the mitigation expert — would be to introduce the testimony of Anderson rather than relying on his affidavit as Williams had previously done. In hope, we suppose, that the district court would look more favorably on Anderson’s statement if he were there in person. But the district court’s opinion suggests otherwise. It did not say that Anderson’s statement was incredible because Anderson was not before the court; rather it found the statement lacked credibility because Anderson waited nine years to reveal his alleged perjury and the state did not have the authority to promise Anderson what he alleges it promised him. Williams has not presented us with an authority, nor have we found any, that would indicate such a hearing is required. The principles applicable to this situation, moreover, militate against such a hearing. See McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir.1998). Williams has had the opportunity for a full and fair hearing in federal court. If we were to analogize Williams’s request to one governed by § 2254(e), moreover, Williams would not be entitled to a second hearing. Any undeveloped factual allegations — the absence of testimony by Anderson-are a result of Williams’s failure. Williams does not meet one of the listed exceptions. Accordingly, we reject Williams’s argument that he is entitled to a second federal evidentiary hearing. B. Standards of Review Because the AEDPA applies to Williams’s petition, see Williams v. Coyle, 167 F.3d 1036 (6th Cir.1999), we review his petition under the standards set forth in 28 U.S.C. § 2254(d). That section provides: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on" }, { "docid": "3676686", "title": "", "text": "affidavit from Anderson— and Ohio law did not apply the doctrine to claims supported by evidence outside the record. Williams also stated that the trial court erred by failing to grant his petition as to the Brady claim. The court of appeals rejected Williams’s contention that evidence outside the record prevents a court from applying res judicata to procedurally bar a claim. It stated, Defendant’s seventh assignment of error contends the prosecution presented false testimony from Michael Anderson and concealed a deal to obtain his testimony, thereby depriving defendant of effective counsel.... Defendant contends he is entitled to file successive PCR Petitions, despite the denial of prior PCR Petitions rasing the same grounds, whenever he presents new evidence to support the claims. Contrary to defendant’s argument, Ohio law does not grant carte blanche to file successive PCR Petitions endless ly.... Trial courts are not required to entertain successive petitions which allege the same grounds as earlier petitions .... Defendant has failed to show that the trial court abused its discretion by dismissing these claims in his fifth PCR. Defendant raised the same claims in his fourth PCR Petition and made no attempt to show good cause for permitting him to raise them again belatedly with additional evidence. That Michael Anderson testified falsely at trial and the prosecution concealed promises of lenient sentencing to induce his testimony were arguments raised before. Defendant’s fourth PCR Petition was based on an affidavit of investigator Jeff Layman and.... Defendant’s fifth Petition merely adds an affidavit in which Anderson recants his trial testimony. However, recanted testimony is suspect and does not generally warrant a hearing.... State v. Williams, No. 68613, 1996 WL 17333 at *2 (Ohio Ct.App. Jan. 18, 1996) (unpublished opinion) (internal citations omitted). The court did not go on to address the merits of the claim. The Supreme Court of Ohio affirmed without opinion. Those dismissals, the Warden argues, establish a procedural bar to this court hearing Williams’s Brady claim. Pointing to our decisions in Wong v. Money, 142 F.3d 313 (6th Cir.1998), and Norris v. Schotten, 146 F.3d 314 (6th Cir.1998), the" }, { "docid": "1718970", "title": "", "text": "Dorgan, 505 F.2d 1135, 1138 (8th Cir.1974) (citing multiple Supreme Court decisions), Under certain limited circumstances, Congress, when acting under a proper constitutional grant of authority, may expressly abrogate the states' Eleventh Amendment immunity respecting enforcement of a particular statute. See Seminole Tribe, - U.S. at - - -, 116 S.Ct. at 1123-32; Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425-26, 88 L.Ed.2d 371 (1985); Wilson-Jones v. Caviness, 99 F.3d 203, 208 (6th Cir.1996). However, Congress did not abrogate the states' Eleventh Amendment immunity from legal actions in federal court by enacting section 1983. Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979); In re Secretary of Dept. of Crime Control, 7 F.3d 1140, 1149 (4th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 2106, 128 L.Ed.2d 667 (1994); Williams v. Missouri, 973 F.2d 599, 600 (8th Cir.1992) (per curiam). Additionally, a state may waive its Eleventh Amendment immunity, usually via legislative enactment. Wilson-Jones, 99 F.3d at 206 n. 1. Ohio has statutorily waived its state sovereign immunity against certain state court actions by consenting to exposure to private litigations in the Ohio Court of Claims, subject to certain limitations and conditions. See Ohio Rev.Code Aim. § 2743.02 (Anderson Supp.1995). This limited legislative renunciation of governmental immunity has no application to the instant action. . Ohio statutory law commands that each county shall have its own common pleas court, with one or more judges sitting in a particular county as designated by state law. Those judges must sat-1Sf)' State imposed residency and law practice requirements, and shall be elected for the standard, state-created six-year term. Ohio Rev. Code Ann. § 2301.01 (Anderson Supp.1995). . Under Ohio Rev.Code Ann. § 2301.03(C) (Anderson 1996 Bulletin #5), the judges of the Lorain County Domestic Relations Court exercise the powers of a juvenile court judge. Ohio Rev. Code Ann. § 2151.13 (Anderson 1994) empowers juvenile court judges in Ohio to appoint such \"employees as are necessary and may designate their titles and fix their duties, compensation, and expense allowances.\" Such employees serve at the pleasure" }, { "docid": "3676727", "title": "", "text": "level that not knowing undermines confidence in the outcome. See Byrd v. Collins, 209 F.3d 486, 518-19 (6th Cir.2000). IV. CONCLUSION For the foregoing reasons, we affirm the district court’s denial of the petition for a writ of habeas corpus. . The state chose not to prosecute Williams on the aggravated burglary and theft counts. . Williams's second PCR proceeding does not concern his murder conviction. . Read in context, Williams's petition for PCR suggests he was not alleging a Brady violation; rather, he was arguing that witnesses testified falsely. . Specifically, the affidavit reads, Anderson told me after talking to the police that he knew about [Williams] because the police told him about the case. Anderson said that he might as well sink [Williams] for what [Williams] had done to him. Anderson told [Williams] that ... the prosecutors were going to give him, Anderson, a bill, meaning lesser time. Anderson said [Williams] should never have crossed him. After Anderson got back from court, [Williams] told Anderson that he had lied. Anderson said, \"Better you than me.” J.A. at 880. . The failure is also troubling in light of Ohio's requirement that when a trial court \"dismisses [a] petition, it ... make and file findings of fact and conclusions of law with respect to such dismissal.” Ohio Rev.Code Ann. § 2953.21(C); see also State v. Lester, 41 Ohio St.2d 51, 322 N.E.2d 656, 659 (Ohio 1975). . Williams's brief to the court of appeals is not in the appendix but the Ohio Court of Appeals’s decision in his direct appeal decision discusses and rejects his claim that the instruction requiring a unanimous verdict for a life sentence was error. . Under Townsend, a petitioner is entitled to an evidentiary hearing if: (l)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" }, { "docid": "10620673", "title": "", "text": "lacks the jurisdiction to entertain such state law claims. This Court agrees. Two statutes support the OSU Defendant’s position. The first statute, Ohio Revised Code § 9.86, provides in relevant part that no officer or employee shall be liable in any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer’s or employee’s actions were manifestly outside the scope of his employment or official responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner. Ohio Rev.Code § 9.86. The second statute, recognizes this immunity and vests the threshold determinations in the Ohio Court of Claims by providing: A civil action against an officer or employee ... that alleges that the officer’s or employee’s conduct was manifestly outside the scope of the officer’s or employee’s employment or official responsibilities, or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner shall first be filed against the state in the court of claims, which has exclusive, original jurisdiction to determine, initially, whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code and whether the courts of common pleas have jurisdiction over the civil action. Ohio Rev.Code § 2743.02(F). Thus, as another judicial officer has recognized, “[t]he Sixth Circuit has read §§ 9.86 and 2743.02(F) together to hold that a state employee is immune from state law claims until the Court of Claims has held that § 9.86 immunity is unavailable.” Prior v. Mukasey, No. 3:08CV994, 2008 WL 5076821, at *2 (N.D.Ohio Nov. 21, 2008). This means that, “ ‘[u]ntil the Ohio Court of Claims determines that [defendant] are not immune, there is no cause of action cognizable under Ohio law over which the district court can assert jurisdiction.’ ” Id. (quoting Haynes v. Marshall, 887 F.2d 700, 705 (6th Cir.1989)). Moreover, the Ohio Court of Claim’s exclusive jurisdiction to engage in the statutorily mandated inquiry applies to individuals with dual employment" }, { "docid": "10087031", "title": "", "text": "were legitimate and non-discriminatory, Pittman’s claims of race discrimination fail as a matter of law. 2. Conspiracy under Color of Law to Deprive the Right to Free Speech In the last sentence of Paragraph 4 of Pittman’s Complaint, it is claimed: “The individual defendants used their respective official positions to deprive and curtail plaintiffs First Amendment rights.” Count IV of the Complaint elaborates: [T]he defendants Rybak and Schlachter were acting under color of law, when on October 27, 2004, they conspired to suppress plaintiffs first amendment right of free speech by suspending him and subsequently terminating him for speaking out regarding the unfair imposition of duties on plaintiff and for his criticizing false accusations against plaintiff by such officials. A review of the Complaint and Pittman’s deposition has not uncovered any allegation that the individual defendants were motivated by intentional race-based discrimination in their conspiratorial actions. The Court will, therefore, analyze Pittman’s conspiracy claim as an allegation that Principal Rybak and Superintendent Schlachter conspired to deprive Pittman of his rights, privileges, and/or immunities secured by the First Amendment of the United States Constitution. See 42 U.S.C. § 1983. The Sixth Circuit has observed that “[i]t is well-settled that conspiracy claims must be pled with some degree of specificity and that vague and conclusory allegations unsupported by material facts will not be sufficient to state a claim under § 1983.” Jackson v. Madery, 158 Fed.Appx. 656, 659 (6th Cir.2005)(citing Gutierrez v. Lynch (6th Cir.1987), 826 F.2d 1534, 1538). Because a plaintiff rarely will be able to offer direct evidence in a conspiracy case of an express agreement among the conspirators, circumstantial evidence may provide adequate proof of conspiracy. Weberg v. Franks, 229 F.3d 514, 528 (6th Cir.2000). The Southern District of Ohio has described the elements of proof for a civil conspiracy as follows: A civil conspiracy is “a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties ‘to inflict a wrong against or injury upon" }, { "docid": "5541306", "title": "", "text": "to meet the other three elements of J. Mata’s claim. According to the Amended Statement of Probable Cause, Anderson brought criminal claims against J. Mata in part because he filed a citizen complaint along with a petition and because he was picketing the Farmington Police Department. Both of these actions are constitutionally protected FirsbAmendment rights, and a reasonable jury could find that Anderson’s response of filing criminal charges is enough to chill a person of ordinary firmness from continuing to engage in such activity. Moreover, Anderson’s party admission, as stated in Nagl’s affidavit, that J. Mata’s “not going to get away with this,” viewed in the light most favorable to J. Mata, is sufficient evidence to establish a retaliatory motive. Because the Court has determined that J. Mata has produced sufficient evidence upon which a reasonable jury could find a violation of a constitutional right, J. Mata must also establish that the right allegedly violated was clearly established at the time so that a reasonable person in Anderson’s position would have known that his conduct violated that right. See Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 516 (10th Cir.1998). “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Strepka v. Miller, 28 Fed.Appx. 823, 830 (10th Cir.2001) (citing Currier v. Doran, 242 F.3d at 923). The Tenth Circuit has previously held that Firsh-Amendment retaliation claims are clearly established. See Buck v. City of Albuquerque, 549 F.3d 1269, 1293 (10th Cir.2008); Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836, 848 (10th Cir.2005)(“It has long been clearly established that the First Amendment bars retaliation for protected speech and association.”). The Court, therefore, finds that J. Mata meets the second-prong of defeating a qualified immunity defense. Once a plaintiff has established the inference that the defendant’s conduct violated a clearly established constitutional right, a qualified immunity defense ordinarily fails. See Cannon v. City and County" }, { "docid": "10620691", "title": "", "text": "some departures from internal protocols fail to constitute constitutional violations (i.e., departures without negative ramifications, for example). More helpful to the moving defendants is the other ease they cite to support their rule statement and upon which they primarily rely in their reply memorandum, Anderson v. Ohio State University, 2001 WL 99858. In Anderson, a judicial officer in this District addressed a situation in which the school failed to follow its own rules governing pre-termination hearings. That judge stated: [T]he Sixth Circuit has consistently stated that a violation of internal rules, such as the university’s own rules governing hearings, “does not establish a cognizable constitutional violation.” Hall, 742 F.2d at 309; see also Purisch v. Tennessee Tech. Univ., 76 F.3d 1414, 1423 (6th Cir.1996); Gies v. Flack, No. C-3-96-61, 1996 WL 1671234, at *7 (S.D.Oh. Apr. 24, 1996) (“Plaintiff cannot maintain a due process claim for [the university’s] alleged failure to adhere to its handbook procedures for removing him from tenure.”). After all, “the federal courts, and not the [u]niversity[,] ... are responsible for establishing the contours of the Due Process Clause of the Fourteenth Amendment.” Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 522 (10th Cir.1998). Accordingly, this Court will analyze the allegations in the Amended Complaint under federal law defining the contours of procedural due process. Id. at *5. This statement of the law (relying not just on the language of Hall but other cases as well) and its application in Anderson prove more useful than Hall alone because Anderson constitutes a case in which procedure deviations that did not ultimately deprive a plaintiff of the constitutionally guaranteed minimum level of procedural due process did not present an actionable § 1983 claim. Anderson is thus important here because it not only teaches that not all deviations are constitutionally impermissible, however notably unpleasant and inconvenient they may be, but it also then applies that rule to a failure to afford a party all of the process an internal policy set forth. That application is closer to the instant case than the facts of Hall. The rule that some" }, { "docid": "10620674", "title": "", "text": "be filed against the state in the court of claims, which has exclusive, original jurisdiction to determine, initially, whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code and whether the courts of common pleas have jurisdiction over the civil action. Ohio Rev.Code § 2743.02(F). Thus, as another judicial officer has recognized, “[t]he Sixth Circuit has read §§ 9.86 and 2743.02(F) together to hold that a state employee is immune from state law claims until the Court of Claims has held that § 9.86 immunity is unavailable.” Prior v. Mukasey, No. 3:08CV994, 2008 WL 5076821, at *2 (N.D.Ohio Nov. 21, 2008). This means that, “ ‘[u]ntil the Ohio Court of Claims determines that [defendant] are not immune, there is no cause of action cognizable under Ohio law over which the district court can assert jurisdiction.’ ” Id. (quoting Haynes v. Marshall, 887 F.2d 700, 705 (6th Cir.1989)). Moreover, the Ohio Court of Claim’s exclusive jurisdiction to engage in the statutorily mandated inquiry applies to individuals with dual employment who serve as employees of private corporations while working under the umbrella of an affiliated state medical institution. Theobald v. Univ. of Cincinnati 111 Ohio St.3d 541, 543, 546, 857 N.E.2d 573, 577, 579 (2006) (addressing the issue of “[a] health-care practitioner who has dual status as a private practitioner and as an employee of a state medical institution”). Plaintiffs arguments, which attempt to remove the individuals (and their conduct) targeted by his public policy, intentional infliction of emotional distress, and conspiracy claims from the scope of statutory immunity, are therefore inappropriate for this Court and more appropriate for the Ohio Court of Claims. Accordingly, the Court GRANTS the motion to dismiss the first, third, and tenth claims and dismisses these claims without prejudice. See Underfer v. Univ. of Toledo, 36 Fed.Appx. 831, 834-35 (6th Cir.2002) (dismissing without prejudice state law claims that should have first been brought in state court of claims). This leaves Plaintiffs federal claims for relief. OSU seeks dismissal of select non-compensation components of claim two on the grounds that Plaintiff" } ]

[ { "docid": "23048059", "title": "", "text": "suffer greater hardships than Florida if required to produce the prisoner-plaintiffs because of the inadequate size of its staff and its lack of authority to expend the funds required for compliance with the anticipated volume of such orders. IV. The Writ of Habeas Corpus Ad Testificandum Precedent for the district court’s use of the writ of habeas corpus ad testificandum to command the presence of these witnesses is steeped in history. Judge Blackstone describes habeas corpus as “the most celebrated writ in the English law. Of these there are various kinds made use of by the courts at Westminster, for removing prisoners from one court into another, for the easy administration of justice.” 3 Commentaries * 129. The writ of habeas corpus ad testificandum, issued to secure the presence of a prisoner at trial for testimony, is among those listed. Id. * 130. Congress authorized federal courts to issue writs of habeas corpus in the Judiciary Act of 1789, c. 20, § 14, 1 Stat. 81-82, and Mr. Justice Marshall, in Ex parte Bollman, 8 U.S. (4 Cranch) 75, 98-99, 2 L.Ed. 554, 562 (1807), citing 3 W. Blackstone, Commentaries * 129-30, interpreted this section to encompass the authority to issue writs of habeas corpus ad testificandum. In Ex parte Dorr, 44 U.S. (3 How.) 103, 105, 11 L.Ed. 514, 515 (1845), the United States Supreme Court concluded that the federal court’s authority to issue the writ to secure the testimony of prisoners extended to those persons in custody under a sentence or execution of a state court. See also Adams v. United States, 423 F.Supp. 578 (E.D.N.Y.1976). (Writ of habeas corpus ad testificandum issued to secure state prisoner’s testimony before a United States Grand Jury.) District courts are expressly granted the power to issue the writ of habeas corpus ad testificandum today. 28 U.S.C. § 2241(c)(5). The decision to issue the writ rests within the discretion of the district court. Malinauskas v. United States, 505 F.2d 649, 655-56 (5th Cir. 1974); United States v. Hathcock, 441 F.2d 197, 199-200 (5th Cir. 1971); Ball v. Woods, 402 F.Supp. 803, 808" } ]

[ { "docid": "22247833", "title": "", "text": "Supreme Court held that a writ of habeas corpus ad prosequendum is not subject to territorial limitations. Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961). Garbo, however, left open the question of the extraterritorial reach of a writ of habeas corpus ad testificandum. Citing Carbo and Title 28 U.S.C. § 2241(c)(5), a district court held that in a proper case it had jurisdiction to issue a writ of habeas corpus ad testificandum ex-traterritorially to the warden of a federal prison in another jurisdiction. United States v. McGaha, 205 F.Supp. 949 (E.D.Tenn.1962). McGaha was cited with approval by the Supreme Court in Barber v. Page, 390 U.S. 719, 724, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), and Chief Judge Haynsworth of the Fourth Circuit has observed that Barber, through its citation of McGaha, “suggests that the remaining doubt about the [extraterritorial] reach of habeas corpus ad testificandum is insubstantial.” Word v. North Carolina, 406 F.2d 352 n.5 (4th Cir. 1969) (en banc). The writ of habeas corpus ad testificandum, Title 28 U.S.C. § 2241(c)(5), is, on its face, comparable to and is as broad as the writ of habeas corpus ad prosequendum, Title 28 U.S.C. § 2241(c)(4). Cf. Ex parte Bollman, 8 U.S. (4 Cranch) 74, 2 L.Ed. 554 (1807). We therefore hold that a district court has the power, although to be exercised with discretion, to compel production of an incarcerated party or witness from anywhere in the country through the use of a writ of habeas corpus ad testificandum. To the extent that Edgerly v. Kennelly, supra, is inconsistent with this decision, it is overruled. Due to the setting in which the plaintiff’s civil rights claim arose, and the way in which it was submitted to the jury as fact finders, we conclude that the plaintiff is entitled to a new trial in which his side of the controversy can be fairly presented. In so holding we are not saying that Stone must be allowed to personally appear at the trial. However, based on the facts of this case, we consider it most" }, { "docid": "3431886", "title": "", "text": "(incarcerated in New York) to California for criminal prosecution in that state. The Supreme Court based its decision on a detailed study and analysis of the statutory history of habeas corpus and concluded that Congress had intended to apply the jurisdictional limitation found in 28 U.S.C. § 2241(a) on writs of habeas corpus ad subjiciendum but not on writs of habeas corpus ad prosequendum. In addition to the historical statutory analysis, the Court also placed great reliance on the need to allow the writ in the administration of the criminal justice system. The Court stated: The more strongly are we led to this construction by recognition of the continually increasing importance assigned to authorizing extraterritorial process where patently desirable. Cf. Fed.Rules Crim.Proc., 4(c)(2) and 17(e)(1). And it is the more so here where an accommodation is so important between the federal and state authorities. [Citation omitted]. That comity is necessary between sovereignties in the administration of criminal justice in our federal-state system is given full recognition by affording through the use of the writ both respect and courtesy to the laws of the respective jurisdictions. (Footnote omitted). 364 U.S. at 620-21, 81 S.Ct. at 344. While Carbo dealt with statutory considerations dealing with writs of habeas corpus generally and based the district court’s authority to issue the habeas corpus ad prosequendum ■ on 28 U.S.C. § 2241(c)(5) (which includes writs of habeas corpus ad testificandum), the Court expressly withheld from deciding whether the writ of habeas corpus ad testificandum would be subject to the jurisdictional limitation. 364 U.S. at 618 n. 13, 81 S.Ct. 338. Following the decision in Carbo, Duncan v. Maine, 195 F.Supp. 199 (D.Me.1961), implied in dicta that Carbo would authorize a district court to issue a writ of habeas corpus ad testificandum extra-territorially. Duncan did not have to decide this question because there was no action pending in that court at that time because the petitioner was incarcerated outside of the district and the court could not gain jurisdiction over his attempted writ of habeas corpus ad subjiciendum under the principles of the then applicable decision" }, { "docid": "20896887", "title": "", "text": "considered, issuance of a writ of habeas corpus ad testi-ficandum, is not an open one here. Muhammad is currently incarcerated in Terre Haute, Indiana, and they contend that the writ of habeas corpus ad testificandum cannot be issued extraterritorily in any event. We disagree with the appellees’ contention. The district court may ultimately decide that the writ should not be issued, but the court would not exceed its authority were it to decide otherwise. The issuance of writs of habeas corpus is governed by 28 U.S.C. § 2241, which provides in pertinent part: (a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions ... (c) The writ of habeas corpus shall not extend to a prisoner unless— (5) It is necessary to bring him into court to testify or for trial. Since subsection (a) grants the authority to issue writs of habeas corpus “within their respective jurisdictions,” a number of courts once believed that the writ of habe-as corpus ad testificandum could not be issued extraterritorily. In Carbo v. U.S., 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961), the Supreme Court qualified the apparent limiting phrase in the statute by finding that a district court in California could issue a writ of habeas corpus ad prosequendum to a New York City prison official to turn over a prisoner to stand trial in California. According to the Supreme Court, the limiting phrase applied to the writ of habeas corpus ad subjicien-dum but not to the writ of habeas corpus ad prosequendum. The Supreme Court’s decision was based on a statutory analysis of § 2241(c)(5), which also governs the writ of habeas corpus ad testificandum. The Supreme Court, however, expressly refused to decide whether the writ of habeas corpus ad testificandum could be issued extraterritorily. While Carbo left the issue open, most courts have now recognized that the analysis used by the Supreme Court applies equally to the writs of habeas corpus ad testificandum and habeas corpus ad pro-sequendum. As noted succinctly in Maurer" }, { "docid": "644329", "title": "", "text": "ORDER TO SUBMIT AFFIDAVIT IN SUPPORT OF WRIT OF HABEAS CORPUS AD TESTIFICANDUM AND SETTING PRETRIAL AND TRIAL DATES MOSKOWITZ, District Judge. INTRODUCTION Plaintiff, Herbert Greene, has brought a civil rights action pursuant to 42 U.S.C. § 1983 against Officer Konkel of the Calipatria State Prison. Plaintiff Greene, an inmate at Calipatria, has moved the Court for an order, pursuant to 28 U.S.C. §§ 1651(a) and 2241(e)(5), granting his request for writs of habeas corpus ad testificandum directing the production of inmate-witnesses at trial, two of which are incarcerated outside of this district. The defendant opposes this motion. DISCUSSION 28 U.S.C. § 2241(c)(5), in conjunction with 28 U.S.C. § 1651(a), permits a federal court, when necessary, to issue a writ of habeas corpus ad testificandum. The purpose of this writ is to direct the custodian of a prisoner to produce the prisoner for appearance as a witness in court. The decision to issue a writ of habeas corpus ad testificandum is committed to the discretion of the district court. See Atkins v. City of New York, 856 F.Supp. 755, 757 (E.D.N.Y.1994). A. Jurisdictional Concerns The power of the district courts to issue writs of habeas corpus ad testificandum stems from 28 U.S.C. § 2241. The defendant, relying on § 2241, subd. (a), argues that the writ of habeas corpus may be granted only within the district court’s respective jurisdiction. In Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961), the United States Supreme Court held that the language in 28 U.S.C. § 2241(a) limiting the issuance of writs of habeas corpus by judges within their respective jurisdictions applies only to writs of habeas corpus ad subjiciendum (those testing the legality of imprisonment) and not ad prosequendum (those ordering the production of a prisoner for prosecution). Thus, the Supreme Court held that a district judge in the Southern District of California had jurisdiction to issue a writ of habeas corpus ad prosequendum to a New York City prison to produce a prisoner for trial in federal court in California. The Court, however, expressly noted that it" }, { "docid": "644330", "title": "", "text": "York, 856 F.Supp. 755, 757 (E.D.N.Y.1994). A. Jurisdictional Concerns The power of the district courts to issue writs of habeas corpus ad testificandum stems from 28 U.S.C. § 2241. The defendant, relying on § 2241, subd. (a), argues that the writ of habeas corpus may be granted only within the district court’s respective jurisdiction. In Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961), the United States Supreme Court held that the language in 28 U.S.C. § 2241(a) limiting the issuance of writs of habeas corpus by judges within their respective jurisdictions applies only to writs of habeas corpus ad subjiciendum (those testing the legality of imprisonment) and not ad prosequendum (those ordering the production of a prisoner for prosecution). Thus, the Supreme Court held that a district judge in the Southern District of California had jurisdiction to issue a writ of habeas corpus ad prosequendum to a New York City prison to produce a prisoner for trial in federal court in California. The Court, however, expressly noted that it was not deciding whether the writ of habeas corpus ad testificandum was subject to the jurisdictional limitation of 28 U.S.C. § 2241(a). Carbo, 364 U.S. at 618, n. 13, 81 S.Ct. at 342, n. 13. Courts that have considered the territorial reach of writs of habeas corpus ad testificandum after Carbo have concluded that such writs can be issued to produce a person incarcerated outside of the district to testify. The prevailing view of the appellate courts favors the extraterritorial application of a writ of habeas corpus ad testificandum in appropriate circumstances. See Muhammad v. Warden, Baltimore City Jail, 849 F.2d 107, 114 (4th Cir.1988); Itel Capital, Corp. v. Dennis Mining Supply and Equip., Inc., 651 F.2d 405, 407 (5th Cir.1981); Stone v. Morris, 546 F.2d 730, 737 (7th Cir.1976); see also Maurer v. Pitchess, 530 F.Supp. 77 (C.D.Cal.1981), aff'd in part, rev’d in part, 755 F.2d 936 (9th Cir.1985). These courts have found that the Supreme Courts’ reasoning as to the basis for the extraterritorial application of a writ of habeas corpus ad prosequendum" }, { "docid": "22097410", "title": "", "text": "of “[w]rits of habeas corpus,” 28 U. S. C. § 2241(a), the limitation applied to habeas corpus ad subjiciendum, but not to habeas corpus ad prosequendum. The Commonwealth similarly argues that the provisions in § 2243 that direct the custodian to produce the prisoners in court do not apply to the writ ad testificandum but instead are limited to the Great Writ, habeas corpus ad subjiciendum. Carbo’s expansive reading of the statute was consistent with common-law procedure and requirements applied to the writ ad prosequendum and with the legislative history of § 2241(a). 364 U. S., at 615-618. But this ease involves the writ ad testificandum, which has been confined in its application to the actual custodian of the prisoners from before its initial codification in 1789 to the present. We therefore do not believe that Carbo justifies a more expansive view of the writ of habeas corpus ad testificandum today. The All Writs Act provides in pertinent part: “The Supreme Court and 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.” In United States v. New York Telephone Co., 484 U. S. 159 (1977), the Court held that a District Court could under the All Writs Act compel a third party, the New York Telephone Company, to assist the Federal Bureau of Investigation in installing devices under a warrant that would register the numbers dialed on certain telephones. In that case the All Writs Act filled a gap in federal statutes by granting the District Court jurisdiction over the only party capable of installing the devices. In the instant case, by contrast, the habeas corpus statute already expressly provides for the issuance of a writ “to the person having custody of the person detained.” In Price v. Johnston, 334 U. S. 266 (1948), the Court held that a Court of Appeals could order a prisoner to be brought before it to argue his own appeal, finding that the All Writs Act was a mechanism to achieve the “rational ends" }, { "docid": "11202992", "title": "", "text": "AD TESTIFICANDUM TO RUN OUT OF ITS JURISDICTION. The precise question which is presented by the instant petition does not appear to have previously been decided. Existing authorities however indicate that United States District Courts have the power to issue writs of habeas corpus ad testificandum only within their respective jurisdictions. In Edgerly v. Kennelly, 215 F.2d 420 (7 Cir.), cert. denied, 348 U.S. 938, 75 S.Ct. 359, 99 L.Ed. 735 (1954) the petitioner was imprisoned in the United States Penitentiary at Alcatraz Island, California. He sought a writ of habeas corpus ad testificandum directing the warden of that institution to deliver him to the United States District Court for the Northern District of Illinois so that he could testify in a civil action for damages in which he was the plaintiff. The United States District Court denied his petition and dismissed the action upon representations that his testimony was essential. On appeal it was conceded that jurisdiction to issue the writ was dependent upon the “all writs statute,” 28 U.S.C.A. § 1651(a). The Court of Appeals held that the “all writs statute” did not expand the territorial boundaries of the United States District Courts and affirmed the order dismissing the action. In Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961) a writ of habeas corpus ad prosequendum was issued directing a prison official in New York to deliver Carbo to the United States District Court for the Southern District of California so that he could be prosecuted. Before the writ could be served Carbo moved to quash it, arguing on the basis of the language of 28 U.S.C. § 2241(a) that the United States District Court for the Southern District of California had no power to issue the writ to an officer located outside its territorial boundaries. The Supreme Court held that the court had power to issue the writ. The holding was based in part upon historical factors which tended to indicate that Congress was concerned with the writ of habeas corpus ad subjiciendum at the time when the jurisdictional limitation was" }, { "docid": "11202996", "title": "", "text": "of a prisoner are not sufficiently compelling to accord extraterritorial effect to the writ of habeas corpus ad subjiciendum, then the maintenance of a civil action for damages is not a sufficiently compelling reason to accord extraterritorial effect to the writ of ha-beas corpus ad testificandum. Persuasive, is the fact the California law does not permit the release of prisoners for the purpose of testifying in civil actions. People v. Lawrence, 140 Cal.App.2d 133, 135, 295 P.2d 4 (1956); In re Bagwell, 26 Cal.App.2d 418, 419-421, 79 P,2d 395 (1938), Petitioner is inaccurate in his statement that section 2621 of the California Penal Code permits his release for the purpose of testifying in civil actions. Section 2621 provides only for the release of prisoners whose testimony is required in criminal actions. Section 2623 of the Penal Code deals with the testimony of prisoners in civil actions. It provides, in pertinent part: “If in a civil action or special proceeding a witness be a prisoner, confined in a state prison within this .State, an order for his examination in the prison by deposition may be made * * *•» Finally, in determining the intent of Congress it must be remembered that “Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). In view of this it is unlikely that Congress intended to give extraterritorial effect to writs of habeas corpus ad testificandum in mere civil actions for damages. Congress recently amended 28 U.S.C. § 2241 by adding the following: “(d) Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced" }, { "docid": "17375479", "title": "", "text": "trial when that prisoner is incarcerated outside of the district court’s territorial jurisdiction. We must also review the facts of this particular case and determine whether the district court abused its discretion in denying appellant’s petition. I. Neither party has been able to bring to the court’s attention a Fifth Circuit case dealing directly with the question of whether a district court has authority to issue a writ of habeas corpus ad testificandum ex-traterritorially. Appellants point to the Seventh Circuit’s decision in Stone v. Morris, 546 F.2d 730 (7th Cir. 1976), in which that court held that district courts have such authority. Appellants urge this court to adopt this position in the Fifth Circuit. Appellees point to the case Braden v. Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), in which the Supreme Court held that when a prisoner is not incarcerated within the territorial jurisdiction of the district court, that court has authority to issue a writ of habeas corpus only if the custodian of the prisoner can be reached by service of process. Rule 4(f) of the Federal Rules of Civil Procedure states that process may be served beyond the limits of the state in which the district court is held only when authorized by statute. Ap-pellee asserts that no statute exists giving a district court authority to reach the prison authorities in another state by service of process. Statutory authority for a district court to issue a writ of habeas corpus ad testificandum is found in 28 U.S.C. § 2241(CX5). While the Supreme Court has not decided a case directly concerning issuance of a writ of habeas corpus ad testificandum, the Court’s decision in Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961), directly addresses the question of whether a writ of habeas corpus ad prosequendum could be issued extraterritorially. The Court held that the territorial limitation in 28 U.S.C. § 2241(a), which provides that writs of habeas corpus may be granted by district courts “within their respective jurisdictions,” refers solely to the issuance of the Great Writ (habeas" }, { "docid": "17375480", "title": "", "text": "service of process. Rule 4(f) of the Federal Rules of Civil Procedure states that process may be served beyond the limits of the state in which the district court is held only when authorized by statute. Ap-pellee asserts that no statute exists giving a district court authority to reach the prison authorities in another state by service of process. Statutory authority for a district court to issue a writ of habeas corpus ad testificandum is found in 28 U.S.C. § 2241(CX5). While the Supreme Court has not decided a case directly concerning issuance of a writ of habeas corpus ad testificandum, the Court’s decision in Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961), directly addresses the question of whether a writ of habeas corpus ad prosequendum could be issued extraterritorially. The Court held that the territorial limitation in 28 U.S.C. § 2241(a), which provides that writs of habeas corpus may be granted by district courts “within their respective jurisdictions,” refers solely to the issuance of the Great Writ (habeas corpus ad subjiciendum) with which the bulk of the section is concerned, and not to issuance of the writ of habeas corpus ad prosequendum. We feel the decision in Carbo applies to writs of habeas corpus ad testificandum as well. This was the reasoning of the Seventh Circuit in deciding Stone v. Morris. Because we find statutory authority for issuing a writ extraterritorially, appellee’s argument based on Braden must fail. We therefore adopt the rule in the Fifth Circuit that district courts have the authority to issue writs of habeas corpus ad testifican-dum extraterritorially. II. Having reached that decision, we note that the district court acted under the assumption that it had authority to issue the writ extraterritorially. We must therefore review the decision of the district court to determine whether the court abused its discretion in denying Dennis’s petition for a writ of habeas corpus ad testificandum. That denial was based solely on the court’s finding that the petition was untimely. Appellants point out factors to be considered by the district court in reviewing" }, { "docid": "20896888", "title": "", "text": "ad testificandum could not be issued extraterritorily. In Carbo v. U.S., 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961), the Supreme Court qualified the apparent limiting phrase in the statute by finding that a district court in California could issue a writ of habeas corpus ad prosequendum to a New York City prison official to turn over a prisoner to stand trial in California. According to the Supreme Court, the limiting phrase applied to the writ of habeas corpus ad subjicien-dum but not to the writ of habeas corpus ad prosequendum. The Supreme Court’s decision was based on a statutory analysis of § 2241(c)(5), which also governs the writ of habeas corpus ad testificandum. The Supreme Court, however, expressly refused to decide whether the writ of habeas corpus ad testificandum could be issued extraterritorily. While Carbo left the issue open, most courts have now recognized that the analysis used by the Supreme Court applies equally to the writs of habeas corpus ad testificandum and habeas corpus ad pro-sequendum. As noted succinctly in Maurer v. Pitchess, 530 F.Supp. 77 (C.D.Cal.1981): The Carbo analysis of the statutory history of the habeas power is ... equally applicable to the writ of habeas corpus ad testificandum. The geographic limitation of the habeas power was specifically intended to apply only to the “Great Writ” and not to habeas corpus ad pro-sequendum. The power of the district court to issue the writ of habeas corpus ad prosequendum is not geographically restricted. The statutory antecedents for habeas corpus ad prosequendum and habeas corpus ad testificandum are exactly the same..... Habeas corpus ad testificandum is therefore not terri-torily limited by 28 U.S.C. § 2241(a). 530 F.Supp. at 79. See also Word v. North Carolina, 406 F.2d 352, 356 n. 5 (4th Cir.1969) (dicta) (suggesting that “the remaining doubt about the reach of habeas corpus ad testificandum is insubstantial”). VII Finally, we observe in remanding that as a preliminary matter the court may, if so advised, consider whether the pending claims may yet be subject to summary adjudication without trial. Though the record indicates that the court" }, { "docid": "22247832", "title": "", "text": "trial court did not have jurisdiction to secure Stone’s presence at the trial because he was incarcerated at the Menard Correctional Center which is not in the Northern District of Illinois. They argue that the decision of this court in Edgerly v. Kennedy, supra, operates to preclude the issuance of a writ of habeas corpus ad testificandum extraterritorially. In Edgerly, supra, the plaintiff brought a civil action in the Northern District of Illinois based on alleged police brutality. Subsequent to the commencement of the action the plaintiff was convicted of serious criminal offenses and was confined in the Federal Penitentiary at Alcatraz Island, California. Plaintiff’s counsel sought writs of habeas corpus ad testificandum for the purpose of taking the plaintiff’s deposition in Chicago and for the production of the plain tiff at the trial of his claim in Chicago. This court held that the district court was without jurisdiction to direct issuance of the writs to an official who was not within the territorial jurisdiction of the court. Subsequent to the decision in Edgerly the Supreme Court held that a writ of habeas corpus ad prosequendum is not subject to territorial limitations. Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961). Garbo, however, left open the question of the extraterritorial reach of a writ of habeas corpus ad testificandum. Citing Carbo and Title 28 U.S.C. § 2241(c)(5), a district court held that in a proper case it had jurisdiction to issue a writ of habeas corpus ad testificandum ex-traterritorially to the warden of a federal prison in another jurisdiction. United States v. McGaha, 205 F.Supp. 949 (E.D.Tenn.1962). McGaha was cited with approval by the Supreme Court in Barber v. Page, 390 U.S. 719, 724, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), and Chief Judge Haynsworth of the Fourth Circuit has observed that Barber, through its citation of McGaha, “suggests that the remaining doubt about the [extraterritorial] reach of habeas corpus ad testificandum is insubstantial.” Word v. North Carolina, 406 F.2d 352 n.5 (4th Cir. 1969) (en banc). The writ of habeas corpus ad testificandum, Title" }, { "docid": "3431887", "title": "", "text": "respect and courtesy to the laws of the respective jurisdictions. (Footnote omitted). 364 U.S. at 620-21, 81 S.Ct. at 344. While Carbo dealt with statutory considerations dealing with writs of habeas corpus generally and based the district court’s authority to issue the habeas corpus ad prosequendum ■ on 28 U.S.C. § 2241(c)(5) (which includes writs of habeas corpus ad testificandum), the Court expressly withheld from deciding whether the writ of habeas corpus ad testificandum would be subject to the jurisdictional limitation. 364 U.S. at 618 n. 13, 81 S.Ct. 338. Following the decision in Carbo, Duncan v. Maine, 195 F.Supp. 199 (D.Me.1961), implied in dicta that Carbo would authorize a district court to issue a writ of habeas corpus ad testificandum extra-territorially. Duncan did not have to decide this question because there was no action pending in that court at that time because the petitioner was incarcerated outside of the district and the court could not gain jurisdiction over his attempted writ of habeas corpus ad subjiciendum under the principles of the then applicable decision of Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948). United States v. McGaha, 205 F.Supp. 949 (E.D.Tenn.1962), followed Duncan and dealt with a defendant in a criminal case who requested a writ of habeas corpus ad testificandum to bring a prisoner incarcerated in a federal penitentiary in Virginia to the federal district court in Tennessee to testify in his behalf. The court in Mc-Gaha cited Carbo and 28 U.S.C. § 2241(c)(5) and stated: “The court has jurisdiction to issue the writ extraterritorially to the warden of the federal prison in another jurisdiction in a proper case.” Id. at 951. McGaha went on to say that if the defendant were entitled to the witness, then because he was indigent he might be entitled to the attendance of the witness at government expense pursuant to Fed.R.Crim.P. 17(b). The Fourth Circuit in Word v. North Carolina, 406 F.2d 352 (4th Cir. 1969), held that a prisoner incarcerated in one state could attack a state conviction in another state by filing his writ of" }, { "docid": "7117030", "title": "", "text": "information, or complaint if unnecessary delay occurs in: (1) presenting a charge to a grand jury; (2) filing an information against a defendant; or (3) bringing a defendant to trial.” Fed.R.Crim.P. 48(b). This rule is a “restatement of the inherent power of the court to dismiss a case for want of prosecution,” United States v. Correia, 531 F.2d 1095, 1099 (1st Cir.1976) (internal quotation mark omitted), and can sometimes be exercised in situations where the Sixth Amendment or STA might not apply. See Id. Facts such as these may also raise constitutional restraints. There was no injustice here. Kelly chose to prolong his detention in Maine under the writ in order to attempt to negotiate plea agreements favorable to him in both Maine and New York. IV. Because the 30-day arrest to indictment clock was not triggered, there was no Speedy Trial Act violation and the motion to dismiss was properly denied. We affirm the judgment of the district court. . Other orders were issued in the Western District of New York, excluding various segments of time from the STA period for that case. . \"Habeas corpus\" is a \"generic term” which includes a variety of “species of that writ.” Ex parte Bollman, 8 U.S. 75, 95, 4 Cranch 75, 2 L.Ed. 554 (1807). The most commonly seen form is the “Great Writ” of habeas corpus ad subjiciendum, which allows for an inquiry into the cause of restraint. Carbo v. United States, 364 U.S. 611, 615, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961); Bollman, 8 U.S. at 95. The writ of habeas corpus ad testificandum is used to bring prisoners \"into court to testify.” 28 U.S.C. § 2241(c)(5); Bollman, 8 U.S. at 98. Other forms exist as well. See Bollman, 8 U.S. at 97-98. . Here, the writ ordered Kelly's custodian, the Buffalo Federal Detention Facility, as well as the United States Marshal for the district, to produce Kelly at the date and time specified in the writ. . A court issuing a writ ad prosequendum \"suffers no geographical limitations” in use of the writ, Carbo, 364 U.S. at 620," }, { "docid": "3431884", "title": "", "text": "EXTRATERRITORIALLY TO BRING A PRISONER TO COURT TO TESTIFY IN A CIVIL SUIT? The question of whether or not this court has jurisdiction to issue a writ of habeas corpus ad testificandum outside of its jurisdiction is not an altogether settled issue. In one of the first cases where this issue was squarely presented to a court, the Seventh Circuit held that such a writ could not be issued extraterritorially. Edgerly v. Kennelly, 215 F.2d 420 (7th Cir. 1954). Edgerly dealt with a ease where the petitioner was seeking to be brought to Chicago from the federal penitentiary on Alcatraz Island, California, to have his deposition taken in conjunction with a civil rights action for money damages which he had instituted. In holding that the court could not issue a writ of habeas corpus ad testificandum extraterritorially, Edgerly held that 28 U.S.C. § 1651 (the all writs statute) could not expand or extend the court’s territorial jurisdiction. The court noted that the Supreme Court in United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952), had held that 28, U.S.C. § 2255 created an exception to the general territorial jurisdiction of federal courts so that a federal court had extraterritorial jurisdiction to require the production of a prisoner at a hearing on the question of his motion to vacate his sentence pursuant to § 2255. However, Edgerly noted that in a civil action for damages, there existed no statutory exception such as existed in Hayman, and in the absence of such, the court could not issue the writ outside of its territorial jurisdiction. The Edgerly case would probably be dispositive of the case sub judice except for the Supreme Court decision in Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961), and several later eases interpreting Carbo. In Carbo the Supreme Court held that a feder-' al district court in California had the power under 28 U.S.C. § 2241 to issue a writ of habeas corpus ad prosequendum to a New York City prison official directing him to deliver the prisoner" }, { "docid": "22425658", "title": "", "text": "was the warden of the Maryland state prison, over whom the Maryland federal district court has jurisdiction, or the warden of the Kentucky federal prison, Poole’s “original place of incarceration” to which he was slated “to return ... at [the] conclusion of proceedings [before the Maryland federal district court],” J.A. 85, over whom the court does not have jurisdiction. B. The government argues that the district court wrongly exercised jurisdiction over Poole’s § 2241 petition because neither its issuance of the writ of habeas corpus ad testificandum nor its order keeping Poole in Maryland transmuted Poole’s temporary presence in the district into a permanent stay that effected a change in custodian. We agree. 1. This court has not had the occasion to address the question of whether an extraterritorial writ of habeas corpus ad testificandum changes the identity of a prisoner’s “immediate custodian” for purposes of § 2241 jurisdiction. This court has held, however, in a related context, that the writ of habeas corpus ad prosequendum, issued to bring a prisoner to his own trial, works a “mere[ ] loan[ ][of] the prisoner to federal authorities” and does not effectuate a change in custodian for purposes of the federal statute criminalizing escape from federal custody, 18 U.S.C. § 751(a). See United States v. Evans, 159 F.3d 908, 912 (4th Cir.1998); see also Pelley v. Matthews, 163 F.2d 700 (D.C.Cir.1947) (holding that a writ of habeas corpus ad prosequendum does not effect a change in custodian). Insofar as the writs of habeas corpus ad prosequendum and habeas corpus ad testificandum are derived from adjacent language in the same statutory subsection, see § 2241(c)(5), and because their “statutory antecedents ... are exactly the same,” Muhammad v. Warden, Baltimore City Jail, 849 F.2d 107, 114 (4th Cir.1988), it is reasonable to believe that the writ of habeas corpus ad testificandum would likewise be a “mere[ ] loan[ ]” that does not effect a change in custody. See Evans, 159 F.3d at 912. Moreover, a number of our sister circuits have directly addressed the effect on custody wrought by issuance of a writ of" }, { "docid": "7680670", "title": "", "text": "Hill to assist Jones in his civil suit is a legal question subject to plenary review. See Tudor Dev. Group v. United States Fidelity & Guar. Co., 968 F.2d 357, 359 (3d Cir.1992). When review is plenary, no form of appellate deference is acceptable. Salve Regina College v. Russell, 499 U.S. 225, 238, 111 S.Ct. 1217, 1224, 113 L.Ed.2d 190 (1991). We begin with the district court’s statutory authority to issue a writ of habeas corpus. District courts are authorized to issue writs only in a number of limited circumstances. See 28 U.S.C. § 2241(c) (1994). Under this statute, a writ may extend to a prisoner when “[i]t is necessary to bring him into court to testify or for trial.” Id. § 2241(c)(5). Under its terms, this provision does not provide authority for a court to remove a prisoner so that he could provide assistance to another prisoner at trial. Rather, the statute represents the codification of the common law writs of habeas corpus ad testificandum and ad prosequendum issued when necessary to produce a prisoner to prosecute him or obtain his appearance as a witness. See United States v. Hooker, 607 F.2d 286, 288 (9th Cir.1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1083, 63 L.Ed.2d 321 (1980). See also United States v. Larkin, 978 F.2d 964 (7th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1323, 122 L.Ed.2d 709 (1993). Jones did not request the court to grant the writ for the foregoing purposes. Thus, § 2241(e)(5) cannot confer upon the district court the power to grant the instant writ. Jones does not take issue with this conclusion. Rather, he argues that the All Writs Act (the Act), 28 U.S.C. § 1651 (1994), “is a flexible and expansive grant of authority for federal courts to issue modified versions of habeas writs not specifically enumerated in § 2241.” He asserts that his case turns not on the district court’s power to issue the writ of habeas corpus, but on whether the courts may issue the writ “to allow lay assistance.” The Act, not specifically relating to habeas corpus, provides" }, { "docid": "22425659", "title": "", "text": "works a “mere[ ] loan[ ][of] the prisoner to federal authorities” and does not effectuate a change in custodian for purposes of the federal statute criminalizing escape from federal custody, 18 U.S.C. § 751(a). See United States v. Evans, 159 F.3d 908, 912 (4th Cir.1998); see also Pelley v. Matthews, 163 F.2d 700 (D.C.Cir.1947) (holding that a writ of habeas corpus ad prosequendum does not effect a change in custodian). Insofar as the writs of habeas corpus ad prosequendum and habeas corpus ad testificandum are derived from adjacent language in the same statutory subsection, see § 2241(c)(5), and because their “statutory antecedents ... are exactly the same,” Muhammad v. Warden, Baltimore City Jail, 849 F.2d 107, 114 (4th Cir.1988), it is reasonable to believe that the writ of habeas corpus ad testificandum would likewise be a “mere[ ] loan[ ]” that does not effect a change in custody. See Evans, 159 F.3d at 912. Moreover, a number of our sister circuits have directly addressed the effect on custody wrought by issuance of a writ of habeas corpus ad testificandum. All agree that custody remains in the original place of incarceration. The Ninth Circuit case of Miller v. Hambrick, 905 F.2d 259 (9th Cir.1990), is emblematic. In Miller, a federal prisoner serving time in Texas was called by a California federal court to testify in a tax case. The prisoner was moved to a detention center in Los Angeles. Once he arrived, the prisoner filed a § 2241 petition in the Central District of California, seeking relief from his incarceration. The district court dismissed the petition for lack of jurisdiction. On appeal, the Ninth Circuit affirmed, explaining: The standard writ [of habeas corpus ad testificandum], requiring transfer of a prisoner to another district in order to testify, acknowledges that the prisoner is held under the custody of the person to whom the writ issues and authorizes only “safe and secure conduct” of the prisoner to where he will testify. The writ specifies that “immediately” after giving his testimony the prisoner shall be returned to the person holding him. The writ authorizes" }, { "docid": "11202993", "title": "", "text": "of Appeals held that the “all writs statute” did not expand the territorial boundaries of the United States District Courts and affirmed the order dismissing the action. In Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961) a writ of habeas corpus ad prosequendum was issued directing a prison official in New York to deliver Carbo to the United States District Court for the Southern District of California so that he could be prosecuted. Before the writ could be served Carbo moved to quash it, arguing on the basis of the language of 28 U.S.C. § 2241(a) that the United States District Court for the Southern District of California had no power to issue the writ to an officer located outside its territorial boundaries. The Supreme Court held that the court had power to issue the writ. The holding was based in part upon historical factors which tended to indicate that Congress was concerned with the writ of habeas corpus ad subjiciendum at the time when the jurisdictional limitation was imposed upon the statutory antecedents of 28 U.S.C. § 2241. Carbo v. United States, supra, at 613-620, 81 S.Ct. 338. More persuasive, however, was the Court’s reliance upon the need for comity in the administration of criminal justice and upon provisions authorizing extraterritorial process in criminal matters. Carbo v. United States, supra, at 620-621, 81 S.Ct. 338. Following the Carbo decision several courts made dictum statements that the writ of habeas corpus ad testificandum could issue extraterritorially in appropriate cases. See Duncan v. State of Maine, 195 F.Supp. 199, 201 (D.Maine 1961); United States v. McGaha, 205 F.Supp. 949, 951, (E.D.Tenn.1962). Reliance upon the Carbo decision was misplaced, however, because the court in Carbo specifically refused to decide whether the writ of habeas corpus ad. testificandum was intended by Congress to be subject to the territorial limitation. Carbo v. United States, supra, 364 U.S. at 618 n. 13, 81 S.Ct. 338. Indeed, Yager v. Raisor, 211 F.Supp. 551 (S.D.Ind.1962) appears to be the only decision after Carbo which directly and properly considers the question and" }, { "docid": "22097409", "title": "", "text": "of Florida, concurred in part and dissented in part, believing that the Third Circuit could impose a duty on the Marshals to transport state prisoners. Ibid. The propriety of that part of the order commanding the Marshals to take custody of the state prisoners while they are in the federal courthouse is not specifically before us. The Marshals have conceded that they are responsible for the custody of state prisoners in the federal courthouse as witnesses or parties. The habeas corpus statute provides in pertinent part that the writ “shall be directed to the person having custody of the person detained,” and that “the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.” 28 U. S. C. §2243. Carbo v. United States, 364 U. S. 611 (1961), does not support an expansive reading of the power conferred upon federal district courts by the writ of habeas corpus ad testificandum. In Carbo, the Court found that although § 2241 contained an express territorial limitation of “[w]rits of habeas corpus,” 28 U. S. C. § 2241(a), the limitation applied to habeas corpus ad subjiciendum, but not to habeas corpus ad prosequendum. The Commonwealth similarly argues that the provisions in § 2243 that direct the custodian to produce the prisoners in court do not apply to the writ ad testificandum but instead are limited to the Great Writ, habeas corpus ad subjiciendum. Carbo’s expansive reading of the statute was consistent with common-law procedure and requirements applied to the writ ad prosequendum and with the legislative history of § 2241(a). 364 U. S., at 615-618. But this ease involves the writ ad testificandum, which has been confined in its application to the actual custodian of the prisoners from before its initial codification in 1789 to the present. We therefore do not believe that Carbo justifies a more expansive view of the writ of habeas corpus ad testificandum today. The All Writs Act provides in pertinent part: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary" } ]

[ { "docid": "12838998", "title": "", "text": "pay. As an enforcement mechanism, section 1395dd creates, inter alia, a private cause of action against a hospital that improperly transfers a patient. The language of this federal statute, however, incorporates state standards to delineate the damages that would be available through such a civil action: Any individual who suffers personal harm as a direct result of a participating hospital’s violation of ... [this statute] may, in a civil action against the ... hospital, obtain those damages available for personal injury under the law of the state in which the hospital is located, and such equitable relief as is appropriate. 42 U.S.C. § 1395dd(d)(3)(A) (emphasis added). In Indiana, medical malpractice actions are statutorily limited in two different ways: they are limited procedurally, see Ind.Code § 16-9.5-9-2 (stating that “[n]o action against a health care provider may be commenced in any court of this state before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this chapter and an opinion is rendered by the panel”), and they are limited in the amount of damages they may seek, see Ind.Code § 16-9.5-2-2(b) (stating that a “health care provider qualified under this article is not liable for an amount in excess of one hundred thousand dollars [$100,000] for an occurrence of malpractice”). The defendant has moved to dismiss Mr. Reid’s complaint, and oral argument on the motion was heard in open court on April 7, 1989. Westview argues that the complaint fails to state a claim upon which relief can be granted because the plaintiff’s allegations fall within the scope of the Indiana Medical Malpractice Act and the plaintiff has admittedly not filed his proposed complaint with the medical review panel as Indiana Code § 16-9.5-9-2 would require. In light of the fact that the requirements of section 16-9.5-9-2 are jurisdictional prerequisites, the defendant concludes that this court should dismiss the complaint for lack of subject matter jurisdiction. The plaintiff counters by arguing that section 1395dd establishes federal question jurisdiction over claims of patient dumping. The plaintiff urges further that section 1395dd establishes a federal standard of" } ]

[ { "docid": "15050971", "title": "", "text": "over Defendant Monahan. See Baber, 934 F.2d 1362; Jones v. Wake County Hospital System, Inc., 786 F.Supp. 538 (E.D.North Carolina 1991); Delaney v. Cade, 756 F.Supp. 1476, 1486 (D.C.Kan.1991); Lavignette v. West Jefferson Medical Center, No. 89-5495, 1990 WL 178708 (E.D.La. Nov. 7, 1990); Verhagen v. Olarte, No. 89 Civ. 0300 (CSH), 1989 WL 146265 (S.D.N.Y.1989); but see Sorrells v. Babcock, 733 F.Supp. 1189 (N.D.Ill.1990). Fed.R.Civ.P. 12(h)(3) provides that whenever it appears that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. Accordingly, the court sua sponte finds that the claim against Monahan is due to be dismissed for lack of jurisdiction. III. Conclusion Plaintiff properly amended her complaint to sue Humana Medical Corporation, Inc. She filed her complaint within the two year period provided in § 1395dd(d)(2)(C). The provisions of Ala.Code § 6-5-551 do not apply to a cause of action under § 1395dd because the Alabama provisions apply to state causes of action based on breaches of standards of care, whereas this federal claim is based upon alleged violations of federal statutory requirements. Plaintiff improperly sued Defendants Monahan and Humana Hospital under § 1395dd(d)(1)(A) & (B), because the sections only authorize civil penalties to be recovered by the government, not by private plaintiffs, and the claims under those provisions are due to be dismissed. Plaintiff properly sued Defendant Humana Hospital under § 1395dd(d)(2)(A), seeking damages for wrongful death, and that claim is not due to be dismissed. There is no cause of action provided for a private plaintiff against a responsible physician under the provisions of this federal statute. Therefore, Humana Hospital’s Motion to Dismiss is due to be granted in part and denied in part. The court finds that it does not have jurisdiction over Monahan and will sua sponte dismiss the action against him. . It is unclear whether Plaintiff seeks recovery under the current version of § 1395dd, or the version in force when the alleged acts/omissions occurred. For convenience, the court will refer to section numbers in the current version of § 1395dd, et seq. (includes 1990 amendments). Certain" }, { "docid": "23575334", "title": "", "text": "MEMORANDUM NEWCOMER, District Judge. I have before me defendant Riddle Memorial Hospital’s motion to dismiss this action for lack of federal subject matter jurisdiction. For the reasons stated'below, I will deny the motion. I. Factual Background, Plaintiff Sue A. Bryant, an eighty-one year old nursing home patient, was taken to a hospital for treatment of a separated shoulder. She was treated and discharged back to her nursing home within a twenty-four (24) hour time period. Plaintiff filed a complaint in federal court for alleged violations of the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, on the basis that she was discharged from defendant Riddle Memorial Hospital before her condition had been “stabilized.” Jurisdiction was founded upon federal question jurisdiction under 28 U.S.C. § 1331. Defendant has filed a motion to dismiss plaintiff’s complaint on the grounds that the Emergency Medical Treatment and Active Labor Act does not provide a basis for which federal jurisdiction can be obtained. II. Discussion The issue to be decided is whether the provisions of the Emergency Medical Treatment and Active Labor Act (hereinafter the “Act”) provide for a private cause of action in federal court. Section 1395dd(d)(3)(A) of the Act states: Any individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate. The Act therefore clearly allows civil enforcement of its provisions through a private cause of action. Section 1395dd(d)(3)(C) even provides a two year statute of limitations for the cause of action. What is not apparent, however, is in what forum a party can bring an action; i.e., whether an action can be brought in state or federal court or in both forums. Because of the Act’s inherent ambiguity regarding this particular issue, it becomes necessary to explore the statute’s legislative history in order to gain insight as to whether Congress intended to afford parties" }, { "docid": "15050969", "title": "", "text": "Human Services; they are not available to private parties.”); Burditt v. U.S. Dept. of Health & Human Services, 934 F.2d 1362, 1375 (5th Cir.1991) . Section 1395dd(d)(2)(A) is the only provision that allows for enforcement by a private plaintiff. Therefore, Plaintiff's claim against Humana Hospital is governed by § 1395dd(d)(2)(A). The demand under § 1395dd(d)(1)(A) is due to be dismissed because there is no set of facts that would entitle Plaintiff to recover a civil money penalty against Humana under this section. Although Plaintiff did not aver that she was seeking damages pursuant to § 1395dd(d)(2)(A), it is clear to the court that since Plaintiff made a claim for damages for wrongful death available under state law, and such damages are only authorized by § 1395dd(d)(2)(A), that she is seeking to invoke jurisdiction pursuant to this section. The complaint states a claim for which relief can be granted under this section, and the Motion to Dismiss is due to be denied as to this claim. E. Plaintiff sued Monahan under 42 U.S.C. § 1395dd, et seq., claiming penalties under the civil penalty provision of § 1395dd(d)(l)(B), which allows a penalty of not more than $50,000.00 against a responsible physician, and also claiming damages under the Alabama Wrongful Death Act, pursuant to 1395dd(d)(2)(A). As stated above, a private plaintiffs only cause of action pursuant to this statute is under § 1395dd(d)(2)(A). Section § 1395dd(d)(l)(B) does not allow a private plaintiff to collect the civil penalty. Thus, the Plaintiff may not maintain an action against Dr. Monahan under that section. Section 1395dd(d)(2)(A) only provides for a private claim for a violation of this section against a participating hospital. It makes no provision for a suit against the responsible physician. Congress could as easily have provided a private remedy against a physician as against a hospital; it chose not do so. Federal courts may only hear cases where Congress has provided jurisdiction. Since there is no provision within § 1395dd, et seq. that allows a private plaintiff to sue a responsible physician for violating the statute, the court finds that it lacks jurisdiction" }, { "docid": "12839001", "title": "", "text": "a congressional intent to incorporate state procedures, as well as state substantive limitations on the amount of damages recoverable, is clearly untenable. The defendant was unable to cite (nor is the court aware of) a single other instance in which a federal statute has incorporated state procedural limitations on a federal cause of action brought in a federal court. If Congress had chosen to take such an extraordinary step in section 1395dd, it cer tainly would have chosen more precise language than that utilized in section 1395dd(d)(3)(A). More importantly, however, the court finds that even if section 1395dd(d)(3)(A) could reasonably be read as calling for the general incorporation of state procedural restrictions, such incorporation of Indiana’s statute would be barred by the preemption clause of section 1395dd(f). The Indiana Code’s provision that no cause of action against a health care provider arises until an opinion has been rendered by the state medical review panel “directly conflicts” with section 1395dd’s provision that such a cause of action arises whenever “[a]ny individual ... suffers personal harm as a direct result of a participating hospital’s violation of a requirement of this section.” 42 U.S.C. § 1395dd(d)(3)(A). Furthermore, at oral argument the defendant conceded that the Indiana Medical Malpractice Act was based on a negligence standard, whereas the federal anti-dumping statute was based on a strict liability standard. Thus, if the Indiana medical review panel were permitted to screen Mr. Reid’s complaint before it could be properly presented to this court, the panel’s determination of whether or not Mr. Reid stated a valid claim under the state’s negligence standard would, at best, be totally irrelevant to this court’s determination of whether Westview violated section 1395dd. At worst, the panel’s opinion that Mr. Reid failed to state a valid claim could “directly conflict” with the strict liability standards of the federal statute — further justifying preemption under section 1395dd(f). On the other hand, the court finds equally untenable the plaintiff’s position that section 1395dd(d)(3)(A) should be read as not incorporating any of the provisions of the Indiana medical malpractice statute. According to the plaintiff, section" }, { "docid": "12800693", "title": "", "text": "STATUTES The Plaintiffs allege that Defendant Hu-mana violated various state “prompt pay” statutes in a manner which entitles the Plaintiffs to relief. According to the Plaintiffs, “[approximately 95% of Humana subscribers and the class members providing medical services to said subscribers are located in the 15 states referred in Paragraph—[sic], supra.” Amended Complaint, ¶ 310. The Plaintiffs aver that 13 of these states (Arkansas and Indiana are the exceptions) have “prompt pay” statutes requiring “Humana to pay claims for medical services rendered within a stated period of time,” and that Humana systematically violated these statutes to the detriment of Plaintiffs. Id. at ¶¶ 310, 311. The Plaintiffs did not allege a cause of action against any Defendants other than Humana and maintain that this omission was unintentional. Aetna’s and Foundation’s motions to dismiss the state law prompt pay statutory claims are granted to the benefit of all Defendants, including Humana. The Court will give the Plaintiffs leave to amend their complaint no later than March 26, 2001. Any re-pleading of these state prompt pay claims should identify which state statutes are being alleged and which Defendants are alleged to have violated which statute. Furthermore, the Plaintiffs must state how each Defendant violated the statute (or refer to material from the Amended Complaint), prescribe which statutory section provides an explicit cause of action, and, if no such provision exists, acknowledge that the Plaintiffs are relying on an implied cause of action theory. FEDERAL PROMPT-PAY REQUIREMENTS The Plaintiffs assert an implied claim for relief pursuant to the Omnibus Budget Reconciliation Act of 1986, § 9312(d), which they submit is “codified” at 42 CFR § 417.500(a)(6). Amended Complaint, ¶ 304. This provision states as follows: “(a) Basis for imposition of sanctions. [The Health Care Financing Administration] may impose the intermediate sanctions specified in paragraph (d) of this section, as an alternative to termination, if HCFA determines that an HMO or CMP does one or more of the following: .... (6) Fails to comply with the requirements of section 1876(g)(6)(A) of the Act relating to the prompt payment of claims.” 42 CFR § 417.500(a)(6)." }, { "docid": "16623430", "title": "", "text": "of Mrs. Valdez’ entitlement to an equal standard of care and to be examined upon her presentation to the emergency room of the hospital as mandated by 42 USC 1395dd,” apparently invoking EMTALA’s private civil remedy. (Proposed Amended Complaint at 14 ¶ (22); Proposed Pretrial Order at 1213 ¶ (23).) The event in question occurred on April 14, 1999, yet plaintiff Valdez did not plead a claim under § 1395dd(d)(2) of EMTALA in the original complaint in this action filed on July 25, 2000, and did not attempt to plead such a claim until the Proposed Amended Complaint, submitted on November 6, 2002—one week before pretrial and “more than two years after the date of the violation with respect to which the action is brought,” 42 U.S.C. § 1395dd(d)(2)(C)—as an attachment to the “Plaintiffs’ Rule 15 Motion to Amend and Supplement Complaint to Conform to the Evidence & the 10th Cir. Court 10-7-02 Opinion,” (dkt. no. 438). On the eve of pretrial, the SJHSD defendants filed a Rule 12(b)(6) motion to dismiss plaintiffs EMTALA claim as asserted in the Proposed Pretrial Order on the ground of the two-year statute of limitations. (See Defendants’ Motion to Dismiss Plaintiffs’ EMTALA Claims, filed November 13, 2002 (dkt. no. 447); Memorandum in Support of Defendants’ Motion to Dismiss Plaintiffs EMTALA Claim, filed November 13, 2002 (dkt. no. 448).) Absent leave to amend her pleadings under Fed.R.Civ.P. 15(a) & (b), or incorporation of the claim as a triable issue in a pretrial order pursuant to Fed.R.Civ.P. 16(c), even taking all of Ms. Valdez’ alleged facts as true, the conclusion would necessarily follow that her claim under EMTA-LA is time-barred. (5) “Medicare Patient Bill of Rights” (42 U.S.C. § 1395a) Plaintiffs’ counsel points to § 1802 of Title XVIII of the Social Security Act, 42 U.S.C. § 1395a, as an additional footing for plaintiff Helen Valdez’ claims, alleging a “violation of Mrs. Valdez’ Medicare Patient Bill of Rights to see the medicare provider of her choice,” and a violation of her right “to freely contract and associate with the provider of her choice as found in" }, { "docid": "12838997", "title": "", "text": "ENTRY BARKER, District Judge. This case presents an issue of apparent first impression. On September 5, 1986, Ralph and Lillian Reid were involved in a serious accident and Mrs. Reid was brought to the emergency room of the defendant, Westview Hospital. After being examined and treated by certain physicians at the hospital, arrangements were made to transfer Mrs. Reid to Methodist Hospital in Indianapolis. Sometime after Mrs. Reid was admitted to Methodist Hospital, she died. The plaintiff brought this action claiming that Westview had failed to provide Mrs. Reid appropriate medical care, had failed to provide her the necessary stabilizing treatment, and had transferred her to Methodist Hospital before her condition had properly stabilized. The complaint was filed under a relatively new federal statute designed to deter “patient dumping.” 42 U.S.C. § 1395dd [hereinafter “section 1395dd”]. The term “patient dumping” is used to refer to the practice of those hospitals which, despite being capable of providing the needed medical care, send patients to other facilities or turn patients away because those patients are unable to pay. As an enforcement mechanism, section 1395dd creates, inter alia, a private cause of action against a hospital that improperly transfers a patient. The language of this federal statute, however, incorporates state standards to delineate the damages that would be available through such a civil action: Any individual who suffers personal harm as a direct result of a participating hospital’s violation of ... [this statute] may, in a civil action against the ... hospital, obtain those damages available for personal injury under the law of the state in which the hospital is located, and such equitable relief as is appropriate. 42 U.S.C. § 1395dd(d)(3)(A) (emphasis added). In Indiana, medical malpractice actions are statutorily limited in two different ways: they are limited procedurally, see Ind.Code § 16-9.5-9-2 (stating that “[n]o action against a health care provider may be commenced in any court of this state before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this chapter and an opinion is rendered by the panel”), and they are limited in" }, { "docid": "12839000", "title": "", "text": "care for hospital treatment based on strict liability. Because the defendant conceded at oral argument that the Indiana medical malpractice statute establishes a negligence standard, Mr. Reid concludes that there is a direct conflict between the federal and state statutes and that the federal statute must therefore prevail under the express preemption clause of section 1395dd. See 42 U.S.C. § 1395dd(f) (stating that “[t]he provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.”) As a result of this preemption, the plaintiff argues that neither of the Indiana statutory limitations on medical malpractice actions are incorporated through the language of section 1395dd(d)(3)(A). The court finds that the defendant’s proposed reading of the incorporation language of section 1395dd is unacceptably broad, and the plaintiff’s proposed reading of the same language is unacceptably narrow. The defendant’s argument that the phrase, “those damages available for personal injury under the law of the State in which the hospital was located,” evidenced a congressional intent to incorporate state procedures, as well as state substantive limitations on the amount of damages recoverable, is clearly untenable. The defendant was unable to cite (nor is the court aware of) a single other instance in which a federal statute has incorporated state procedural limitations on a federal cause of action brought in a federal court. If Congress had chosen to take such an extraordinary step in section 1395dd, it cer tainly would have chosen more precise language than that utilized in section 1395dd(d)(3)(A). More importantly, however, the court finds that even if section 1395dd(d)(3)(A) could reasonably be read as calling for the general incorporation of state procedural restrictions, such incorporation of Indiana’s statute would be barred by the preemption clause of section 1395dd(f). The Indiana Code’s provision that no cause of action against a health care provider arises until an opinion has been rendered by the state medical review panel “directly conflicts” with section 1395dd’s provision that such a cause of action arises whenever “[a]ny individual ... suffers personal harm as" }, { "docid": "15050965", "title": "", "text": "health care provider. Plaintiff contends that this is not a medical malpractice claim and § 6-5-551, therefore, does not apply. The Plaintiff has filed suit under 42 U.S.C. § 1395dd, et seq. in federal court, rather than under a state law cause of action in state court. Since the Plaintiff has filed in federal court, the Federal Rules of Civil Procedure apply. Fed.R.Civ.Pro. 1. Under the Federal Rules, Rule 8 requires that the pleading contain “a short and plain statement of the claim showing the pleader is entitled to relief.” Fed.R.Civ.Pro. 8(a)(2). This does not require the Plaintiff to plead his claim with the particularity required by Ala.Code § 6-5-551. Defendant has not cited the court to any provision in the Federal Rules that would require Plaintiff’s complaint to be pled with the specificity and detail required by § 6-5-551, nor has it cited the court to any case law that has determined that a complaint under the EMTALA should be pled with any more specificity than that required by Rule 8. The Federal Rules were designed to require pleading that stated enough information to put the opposing party on notice. Conley v. Gibson, 355 U.S. 41, 47-8, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). The Rules do not require a plaintiff to make her entire ease in her complaint. In fact, “the pleading of evidence is disfavored and evi-dentiary material may be stricken from the complaint.” Safeway Stores, Inc. v. Meat Price Investigator’s Ass’n, 449 U.S. 905, 101 S.Ct. 280, 66 L.Ed.2d 137 (1980). Although Defendant is not asking Plaintiff to attach evidentiary material, the principle remains the same; in federal court, a pleading that puts the opposing party on notice of alleged acts or omissions is sufficient. Section 1395dd(f) does provide that “[t]he provisions of this section do not preempt any state or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.” Section 6-5-551, Code of Alabama, applies, however, to a cause of action, in contract or tort, against a health care provider based upon an alleged breach" }, { "docid": "15050968", "title": "", "text": "The complaint was, therefore, timely filed. The Motion to Dismiss on this ground is due to be denied. D. Finally, Humana Hospital alleges that the complaint is due to be dismissed because it fails to state a claim upon which relief can be granted. Plaintiff is demanding penalties from Humana Hospital under § 1395dd(d)(l)(A), which permits a civil money penalty of not more than $50,000.00 against a participating hospital that negligently violates a requirement of the statute, and damages under Alabama’s Wrongful Death Act, pursuant to § 1395dd(d)(2)(A), which authorizes such recovery by an individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement of the statute. Section 1395dd(d)(1)(A) is a civil penalty provision to be enforced by the United States Government or one of its agencies, not by a private plaintiff. See 42 U.S.C. § 1320a-7a, made applicable by § 1395dd(d)(1)(A); Cf. Baber v. Hospital Corp. of America, 977 F.2d 872 (4th Cir1992) (“Administrative sanctions are penalties imposed by and paid to the Department of Health and Human Services; they are not available to private parties.”); Burditt v. U.S. Dept. of Health & Human Services, 934 F.2d 1362, 1375 (5th Cir.1991) . Section 1395dd(d)(2)(A) is the only provision that allows for enforcement by a private plaintiff. Therefore, Plaintiff's claim against Humana Hospital is governed by § 1395dd(d)(2)(A). The demand under § 1395dd(d)(1)(A) is due to be dismissed because there is no set of facts that would entitle Plaintiff to recover a civil money penalty against Humana under this section. Although Plaintiff did not aver that she was seeking damages pursuant to § 1395dd(d)(2)(A), it is clear to the court that since Plaintiff made a claim for damages for wrongful death available under state law, and such damages are only authorized by § 1395dd(d)(2)(A), that she is seeking to invoke jurisdiction pursuant to this section. The complaint states a claim for which relief can be granted under this section, and the Motion to Dismiss is due to be denied as to this claim. E. Plaintiff sued Monahan under 42 U.S.C. § 1395dd, et" }, { "docid": "15050974", "title": "", "text": "the examination, treatment, or transfer of an individual in a participating hospital, including a physician on-call for the care of such an individual, and who negligently violates a requirement of this section, including a physician who— (i) signs a certification under subsection (c)(1)(A) of this section that the medical benefits reasonably to be expected from a transfer to another facility outweigh the risks associated with the transfer, if the physician knew or should have known that the benefits did not outweigh the risks, or (ii) misrepresents an individual's condition or other information, including a hospital’s obligations under this section, is subject to a civil money penalty of not more than $50,000 for each such violation and, if the violation is gross and flagrant or is repeated, to exclusion from participation in this subchapter and State health care programs. The provisions of section 1320a-7a of this title (other than the first and second sentences of subsection (a) and subsection (b)) shall apply to a civil money penalty and exclusion under this subparagraph in the same manner as such provisions apply with respect to a penalty, exclusion, or proceeding under section 1320a-7a(a) of this title.” .Section 1395dd(d)(2)(A) reads as follows: \"Any individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate.\" . Section 6-5-551 reads as follows: “In any action for injury, damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care the plaintiff shall include in the complaint filed in the action a detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff. The plaintiff shall amend his complaint timely upon ascertainment of new or different acts or omissions upon which his claim is based; provided, however that any such amendment must" }, { "docid": "16623429", "title": "", "text": "Health and Human Services and through private civil actions by “[a]ny individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement of this section.” 42 U.S.C. § 1395dd(d)(2) (2000). The statute has been construed as imposing strict liability on hospitals for violations of its screening and stabilization requirements. See Abercrombie v. Osteopathic Hosp. Founders Ass’n, 950 F.2d 676, 681 (10th Cir.1991); Stevison v. Enid Health Systems, Inc., 920 F.2d 710, 713 (10th Cir.1990). A hospital’s duty to provide the required emergency medical screening and stabilizing treatment to persons requesting such care cannot be delayed by any inquiry as to that person’s “method of payment or insurance status.” 42 U.S.C. § 1395dd(h). Nor is the participating hospital’s duty to provide emergency screening and treatment under § 1395dd(a) and (b) limited to those persons who are regularly in the care of physicians or health care providers having current staff privileges or practice privileges at that hospital. As to plaintiff Helen Valdez, counsel at the time of pretrial asserted the “violation of Mrs. Valdez’ entitlement to an equal standard of care and to be examined upon her presentation to the emergency room of the hospital as mandated by 42 USC 1395dd,” apparently invoking EMTALA’s private civil remedy. (Proposed Amended Complaint at 14 ¶ (22); Proposed Pretrial Order at 1213 ¶ (23).) The event in question occurred on April 14, 1999, yet plaintiff Valdez did not plead a claim under § 1395dd(d)(2) of EMTALA in the original complaint in this action filed on July 25, 2000, and did not attempt to plead such a claim until the Proposed Amended Complaint, submitted on November 6, 2002—one week before pretrial and “more than two years after the date of the violation with respect to which the action is brought,” 42 U.S.C. § 1395dd(d)(2)(C)—as an attachment to the “Plaintiffs’ Rule 15 Motion to Amend and Supplement Complaint to Conform to the Evidence & the 10th Cir. Court 10-7-02 Opinion,” (dkt. no. 438). On the eve of pretrial, the SJHSD defendants filed a Rule 12(b)(6) motion to dismiss plaintiffs EMTALA claim" }, { "docid": "15050962", "title": "", "text": "to determine the nature and extent of her condition. Plaintiff also alleges that the Defendants failed to provide Smith with treatment to stabilize her condition or to provide her transfer to another medical facility, but instead, discharged her from the emergency room in an unstabilized condition. Plaintiff filed suit on April 27,1992 alleging violation of 42 U.S.C. § 1395dd, et seq., the Emergency Medical Treatment and Active Labor Act (“EMTALA”). She seeks the civil penalty authorized by § 1395dd(d)(1)(A) , which permits recovery of civil money penalties of not more than $50,000.00 against hospitals, the civil penalty authorized by § 1395dd(d)(1)(B) , which permits recovery of civil money penalties of not more than $50,000.00 against physicians, and damages under the Alabama Wrongful Death Act, pursuant to § 1395dd(d)(2)(A) . Humana Hospital has moved to dismiss for four reasons: (1) that the Defendant does not own, operate, or manage the Hu-mana Hospital — Montgomery; (2) that the Plaintiffs complaint fails to state a claim upon which relief can be granted because she failed to comply with Ala. Code § 6-5-551 (Supp.1987); (3) that Plaintiff’s claim is barred by the applicable statute of limitations; and (4) that Plaintiff’s complaint fails to state a claim upon which relief can be granted. II.. Analysis A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); see also Wright v. Newsome, 795 F.2d 964, 967 (11th Cir.1986) (“[W]e may not ... [dismiss] unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims in the complaint that would entitle him or her to relief.”). The court will accept as true all well-pleaded factual allegations and view them in a light most favorable to the non-moving party. Hishon, 467 U.S. at 73, 104 S.Ct. at 2232; Taffet v. Southern Co., 930 F.2d 847, 851 (11th Cir.1991). A. Humana Hospital first alleges that" }, { "docid": "15050972", "title": "", "text": "violations of federal statutory requirements. Plaintiff improperly sued Defendants Monahan and Humana Hospital under § 1395dd(d)(1)(A) & (B), because the sections only authorize civil penalties to be recovered by the government, not by private plaintiffs, and the claims under those provisions are due to be dismissed. Plaintiff properly sued Defendant Humana Hospital under § 1395dd(d)(2)(A), seeking damages for wrongful death, and that claim is not due to be dismissed. There is no cause of action provided for a private plaintiff against a responsible physician under the provisions of this federal statute. Therefore, Humana Hospital’s Motion to Dismiss is due to be granted in part and denied in part. The court finds that it does not have jurisdiction over Monahan and will sua sponte dismiss the action against him. . It is unclear whether Plaintiff seeks recovery under the current version of § 1395dd, or the version in force when the alleged acts/omissions occurred. For convenience, the court will refer to section numbers in the current version of § 1395dd, et seq. (includes 1990 amendments). Certain changes were made to the Act after May 1990, including numbering of sections, but those changes have no effect on the outcome of this Motion to Dismiss. . This was enacted as part of the Consolidated Omnibus Budget Reconciliation Act of 1986 (Social Security Act, § 1867, as amended, 42 U.S.C. § 1395dd) often referred to as \"COBRA”, and is also known as the \"Anti-Dumping Statute.” . Section 1395dd(d)(l)(A) reads as follows: \"A participating hospital that negligently violates a requirement of this section is subject to a civil money penalty of not more than $50,000 (or not more than $25,000 in the case of a hospital with less than 100 beds) for each such violation. The provisions of section 1320a-7a of this title (other than subsections (a) and (b)) shall apply to a civil money penalty under this subparagraph in the same manner as such provisions apply with respect to a penalty or proceeding under 1320a-7a(a) of this title.” . Section 1395dd(d)(l)(B) reads as follows: \"Subject to subparagraph (C), any physician who is responsible for" }, { "docid": "15050970", "title": "", "text": "seq., claiming penalties under the civil penalty provision of § 1395dd(d)(l)(B), which allows a penalty of not more than $50,000.00 against a responsible physician, and also claiming damages under the Alabama Wrongful Death Act, pursuant to 1395dd(d)(2)(A). As stated above, a private plaintiffs only cause of action pursuant to this statute is under § 1395dd(d)(2)(A). Section § 1395dd(d)(l)(B) does not allow a private plaintiff to collect the civil penalty. Thus, the Plaintiff may not maintain an action against Dr. Monahan under that section. Section 1395dd(d)(2)(A) only provides for a private claim for a violation of this section against a participating hospital. It makes no provision for a suit against the responsible physician. Congress could as easily have provided a private remedy against a physician as against a hospital; it chose not do so. Federal courts may only hear cases where Congress has provided jurisdiction. Since there is no provision within § 1395dd, et seq. that allows a private plaintiff to sue a responsible physician for violating the statute, the court finds that it lacks jurisdiction over Defendant Monahan. See Baber, 934 F.2d 1362; Jones v. Wake County Hospital System, Inc., 786 F.Supp. 538 (E.D.North Carolina 1991); Delaney v. Cade, 756 F.Supp. 1476, 1486 (D.C.Kan.1991); Lavignette v. West Jefferson Medical Center, No. 89-5495, 1990 WL 178708 (E.D.La. Nov. 7, 1990); Verhagen v. Olarte, No. 89 Civ. 0300 (CSH), 1989 WL 146265 (S.D.N.Y.1989); but see Sorrells v. Babcock, 733 F.Supp. 1189 (N.D.Ill.1990). Fed.R.Civ.P. 12(h)(3) provides that whenever it appears that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. Accordingly, the court sua sponte finds that the claim against Monahan is due to be dismissed for lack of jurisdiction. III. Conclusion Plaintiff properly amended her complaint to sue Humana Medical Corporation, Inc. She filed her complaint within the two year period provided in § 1395dd(d)(2)(C). The provisions of Ala.Code § 6-5-551 do not apply to a cause of action under § 1395dd because the Alabama provisions apply to state causes of action based on breaches of standards of care, whereas this federal claim is based upon alleged" }, { "docid": "15050975", "title": "", "text": "as such provisions apply with respect to a penalty, exclusion, or proceeding under section 1320a-7a(a) of this title.” .Section 1395dd(d)(2)(A) reads as follows: \"Any individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate.\" . Section 6-5-551 reads as follows: “In any action for injury, damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care the plaintiff shall include in the complaint filed in the action a detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff. The plaintiff shall amend his complaint timely upon ascertainment of new or different acts or omissions upon which his claim is based; provided, however that any such amendment must be made at least 90 days before trial. Plaintiff shall be prohibited from conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission. Any complaint which fails to include such detailed specification and factual description of each act and omission shall be subject to dismissal for failure to state a claim upon which relief can be granted.” . Although neither Humana Hospital nor Holcomb refer the court to the applicable statute of limitations, the court is applying the statute of limitations found within the EMTALA. . The current version of § 1395dd(d)(l)(A) provides for liability against a participating hospital that negligently violates a requirement of the statute. This provision was amended in 1990 to substitute \"negligently” for \"knowingly”. Although this does represent a change in the standard for liability against a hospital, it is not determinative in this case because Plaintiff has no standing to sue under either version of this provision. .Burditt and Baber hold that the civil penalty provision of §" }, { "docid": "15050964", "title": "", "text": "the complaint should be dismissed because the Plaintiff has not properly sued Humana Hospital. Defendant claims that Humana, Inc. does not own or operate Humana Hospital — Montgomery. In her Response to the Motion to Dismiss, the Plaintiff states that the Defendant was sufficiently identified such that Humana Medical Corporation, Inc., the proper party, was on proper notice of the claim against it. In fact, Plaintiff points out that Humana Hospital attached the affidavit of Lee Ashbury, Executive Director of Humana — Montgomery, in support of its Motion to Dismiss. Additionally, the Plaintiff filed an amended complaint, substituting Humana Medical Corporation, Inc. for Humana, Inc. This amendment relates back to the date of the original complaint. Fed.R.Civ.P. 15(c). Accordingly, the Motion to Dismiss on this ground is due to be denied. B. Humana Hospital next argues that dismissal is proper because the Plaintiff failed to comply with Ala.Code § 6-5-551 , which requires that medical malpractice claims be pled with detailed specification and a factual description of each act and omission alleging liability of a health care provider. Plaintiff contends that this is not a medical malpractice claim and § 6-5-551, therefore, does not apply. The Plaintiff has filed suit under 42 U.S.C. § 1395dd, et seq. in federal court, rather than under a state law cause of action in state court. Since the Plaintiff has filed in federal court, the Federal Rules of Civil Procedure apply. Fed.R.Civ.Pro. 1. Under the Federal Rules, Rule 8 requires that the pleading contain “a short and plain statement of the claim showing the pleader is entitled to relief.” Fed.R.Civ.Pro. 8(a)(2). This does not require the Plaintiff to plead his claim with the particularity required by Ala.Code § 6-5-551. Defendant has not cited the court to any provision in the Federal Rules that would require Plaintiff’s complaint to be pled with the specificity and detail required by § 6-5-551, nor has it cited the court to any case law that has determined that a complaint under the EMTALA should be pled with any more specificity than that required by Rule 8. The Federal Rules" }, { "docid": "15050966", "title": "", "text": "were designed to require pleading that stated enough information to put the opposing party on notice. Conley v. Gibson, 355 U.S. 41, 47-8, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). The Rules do not require a plaintiff to make her entire ease in her complaint. In fact, “the pleading of evidence is disfavored and evi-dentiary material may be stricken from the complaint.” Safeway Stores, Inc. v. Meat Price Investigator’s Ass’n, 449 U.S. 905, 101 S.Ct. 280, 66 L.Ed.2d 137 (1980). Although Defendant is not asking Plaintiff to attach evidentiary material, the principle remains the same; in federal court, a pleading that puts the opposing party on notice of alleged acts or omissions is sufficient. Section 1395dd(f) does provide that “[t]he provisions of this section do not preempt any state or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.” Section 6-5-551, Code of Alabama, applies, however, to a cause of action, in contract or tort, against a health care provider based upon an alleged breach of the standard of care. Conversely, § 1395dd is based upon liability for violation of statutory requirements. The federal cause of action is independent of and wholly separate from any state cause of action for breach of a standard of care. The pleading necessary for a state medical malpractice action, a state procedural requirement, is totally different from and irrelevant to a cause of action based upon violation of a federal statute. See Reid v. Indianapolis Osteopathic Medical Hosp., Inc., 709 F.Supp. 853, 855 (S.D.Ind.1989). Therefore, the Motion to Dismiss on this ground is due to be denied. C. Humana Hospital alleges that the complaint is due to be dismissed because it is barred by the applicable statute of limitations. Section 1395dd(d)(2)(C) provides that “[n]o action may be brought under this paragraph more than two years after the date of the violation with respect to which the action is brought.” Plaintiff alleges that the acts or omissions giving rise to this claim occurred on May 4, 1990. The complaint was filed on April 27, 1992." }, { "docid": "15050967", "title": "", "text": "of the standard of care. Conversely, § 1395dd is based upon liability for violation of statutory requirements. The federal cause of action is independent of and wholly separate from any state cause of action for breach of a standard of care. The pleading necessary for a state medical malpractice action, a state procedural requirement, is totally different from and irrelevant to a cause of action based upon violation of a federal statute. See Reid v. Indianapolis Osteopathic Medical Hosp., Inc., 709 F.Supp. 853, 855 (S.D.Ind.1989). Therefore, the Motion to Dismiss on this ground is due to be denied. C. Humana Hospital alleges that the complaint is due to be dismissed because it is barred by the applicable statute of limitations. Section 1395dd(d)(2)(C) provides that “[n]o action may be brought under this paragraph more than two years after the date of the violation with respect to which the action is brought.” Plaintiff alleges that the acts or omissions giving rise to this claim occurred on May 4, 1990. The complaint was filed on April 27, 1992. The complaint was, therefore, timely filed. The Motion to Dismiss on this ground is due to be denied. D. Finally, Humana Hospital alleges that the complaint is due to be dismissed because it fails to state a claim upon which relief can be granted. Plaintiff is demanding penalties from Humana Hospital under § 1395dd(d)(l)(A), which permits a civil money penalty of not more than $50,000.00 against a participating hospital that negligently violates a requirement of the statute, and damages under Alabama’s Wrongful Death Act, pursuant to § 1395dd(d)(2)(A), which authorizes such recovery by an individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement of the statute. Section 1395dd(d)(1)(A) is a civil penalty provision to be enforced by the United States Government or one of its agencies, not by a private plaintiff. See 42 U.S.C. § 1320a-7a, made applicable by § 1395dd(d)(1)(A); Cf. Baber v. Hospital Corp. of America, 977 F.2d 872 (4th Cir1992) (“Administrative sanctions are penalties imposed by and paid to the Department of Health and" }, { "docid": "15050961", "title": "", "text": "MEMORANDUM OPINION ALBRITTON, District Judge. This cause is before the court on the Motion to Dismiss filed by Defendant identified as Humana, Inc., d/b/a/ Humana Hospital — Montgomery (“Humana Hospital”), on June 3, 1992. For the reasons set out below, the court is of the opinion that the Motion to Dismiss should be granted in part and denied in part. Additionally, the court is of the opinion that it does not have jurisdiction over Defendant Paul P. Mona-han, M.D. (“Monahan”) (Humana Hospital and Monahan collectively referred to as “Defendants”) and sua sponte dismisses the complaint against him. I. Facts Barbara Jean Smith (“Smith”) sought medical treatment from the Emergency Room at Humana Hospital on May 4, 1990. She was attended by Monahan. According to Plaintiff, when Smith entered Humana Hospital she was one week postpartum, had a temperature in excess of 104 degrees, had a rapid pulse, and had an elevated respiration rate. On May 9, 1990, Smith died. Plaintiff alleges that Smith died as a result of the Defendants’ failure to adequately screen Smith to determine the nature and extent of her condition. Plaintiff also alleges that the Defendants failed to provide Smith with treatment to stabilize her condition or to provide her transfer to another medical facility, but instead, discharged her from the emergency room in an unstabilized condition. Plaintiff filed suit on April 27,1992 alleging violation of 42 U.S.C. § 1395dd, et seq., the Emergency Medical Treatment and Active Labor Act (“EMTALA”). She seeks the civil penalty authorized by § 1395dd(d)(1)(A) , which permits recovery of civil money penalties of not more than $50,000.00 against hospitals, the civil penalty authorized by § 1395dd(d)(1)(B) , which permits recovery of civil money penalties of not more than $50,000.00 against physicians, and damages under the Alabama Wrongful Death Act, pursuant to § 1395dd(d)(2)(A) . Humana Hospital has moved to dismiss for four reasons: (1) that the Defendant does not own, operate, or manage the Hu-mana Hospital — Montgomery; (2) that the Plaintiffs complaint fails to state a claim upon which relief can be granted because she failed to comply with" } ]

[ { "docid": "5489010", "title": "", "text": "in a preferred or privileged position, superior to that of its competitors. This we cannot do. See Milwaukee Towne Corp. v. Loew’s, Inc., 7 Cir., 1951, 190 F.2d 561, 571, certiorari denied, 1952, 342 U.S. 909, 72 S.Ct. 762, 96 L.Ed. 1339; Bigelow v. RKO Radio Pictures, Inc., 7 Cir., 1947, 162 F.2d 520, 524, certiorari denied 1947, 332 U.S. 817, 68 S.Ct. 158, 92 L.Ed. 394. A system of competitive bidding is clearly valid if the films are sold at a fair and reasonable rental. So long as each theatre may bid for the films in an atmosphere of free and open competition, that is all that is required. See Bigelow v. Loew’s, Inc., 7 Cir., 1952, 201 F.2d 25, 28, certiorari denied, 1953, 345 U.S. 950, 73 S.Ct. 865, 97 L.Ed. 1373; Milwaukee Towne Corp. v. Loew’s, Inc., D.C.N.D.Ill.1956, 139 F. Supp. 809, 812. Here, the court found that the competitive bidding “was truly competitive and neither exhibitor knew the offers made by the other exhibitor.” As we cannot say that this finding by the court was clearly erroneous, the system of competitive bidding in the present case must be upheld. See Rushing v. Metro-Goldwyn-Mayer Distributing Corp., 5 Cir., 1954, 214 F.2d 542, 544. III. Finally, appellant complains that Its failure to make a demand to the distributors should not be considered fatal to its claim. It presents two reasons for this position: (1) the making of demands would not have had any effect, and (2) the policy of the distributor-defendants was to license “a good picture to the Peekskill only if and when they were unable to get the picture played at the Paramount Theatre.” The record contains no adequate evidentiary basis for these contentions, though the record does indicate that the Paramount Thea-tre had larger daily gross earnings than appellant’s Peekskill, and hence that a top-grade picture (normally rented on a basis which includes a percentage of gross earnings) would produce more for the distributor if placed in the Paramount rather than in the Peekskill. Certainly, if a distributor is to be forced to give up" } ]

[ { "docid": "13826159", "title": "", "text": "WELSH, District Judge. 1. Defendants’ Motion to Dismiss plaintiff’s claim under the RobinsonPatman Act, Act of Congress of June 19, 1936, 15 U.S.C.A. § 13, is granted for the following reasons: (a) licensing of motion picture films (which is involved here) is not subject to the provisions of said Act, United States v. United Shoe Machinery Company, D.C., 264 F. 138, affirmed 258 U.S. 451, 42 S.Ct. 363, 66 L.Ed. 708; Hillside Amusement Company v. Warner Bros., D.C.S.D.N.Y.C.A. No. 50-183, November 4, 1953, and New Dyckman Theatre Corporation v. Radio-Keith-Orpheum, D.C.S.D.N.Y., January 25, 1955, 20 F.R.D. 36; (b) said Act requires an injury to competition and under the allegations of plaintiff’s complaint it is admitted that the subject of the allegedly discriminatory practices was not a competitor, Chicago Sugar Company v. American Sugar Refining Company, 7 Cir., 176 F.2d 1, Krug v. International Telephone & Telegraph Corporation, CCH.Trade Reg. (Current) par. 68,387, S.D.N.J.1956, 142 F. Supp. 230 and Toulmin Antitrust Law In The United States, Volume V, p. 781 and (c) the actions against the various defendants under said Act involve different transactions and subject matter and should properly be brought against each defendant individually, Rule 20 of the Federal Rules of Civil Procedure, 28 U.S.C. and Baim & Blank, Inc., v. Warren-Connelly Company, Inc., CCH. Trade Reg. (Current) par. 68,388 D.C. S.D.N.Y.1956, 19 F.R.D. 108. 2. Defendants’ motion to dismiss the remainder of plaintiff’s complaint for the reason that the allegations contained therein fail to state a cause of action under the Antitrust Laws of the United States is denied without comment. 3. Defendants’ motion to strike paragraphs 8, 9, 10, 11, 12, 13, 14 and 15 of plaintiff’s complaint, which refers to United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 is granted and leave is hereby granted to plaintiff to file an amended complaint alleging that there was a government action against some of the defendants (naming them), that decrees were entered and that plaintiff intends to rely thereon pursuant to 15 U.S.C.A. § 16 (a). New Dyckman Theatre Corporation v. Radio-Keith-Orpheum" }, { "docid": "10366614", "title": "", "text": "Marco, Inc., v. Paramount Pictures, D.C.Cal.1951, 100 F.Supp. 84, 95-96; Fanchon & Marco, Inc., v. Paramount Pictures, 9 Cir., 1954, 215 F.2d 167, 169-170; J. J. Theatres, Inc., v. Twentieth Century-Fox Film Corp., 2 Cir., 1954, 212 F.2d 840, 843-845; Bordonaro Bros. Theatres, Inc., v. Paramount Pictures, Inc. 2 Cir., 1949, 176 F.2d 594, 597; Milwaukee Towne Corp. v. Loew’s Inc., 7 Cir., 1951, 190 F.2d 561, 565-568. . That these demands present difficult problems and are not fanciful is evidenced by the decided cases in the courts of this Circuit dealing with the varied problems arising from television exploitation of motion pictures. See, Wexley v. KTTV, Inc., D.C.Cal., 1952, 108 F.Supp. 558, affirmed in Wexley v. KTTV, Inc., 9 Cir., 1955, 220 F.2d 438; Autry v. Republic Productions, Inc., D.C. Cal., 1952, 104 F.Supp. 918, affirmed in Autry v. Republic Productions, Inc., 9 Cir., 1954, 213 F.2d 667; United Artists Corporation v. Strand Productions, 9 Cir., 1954, 216 F.2d 305. See, Herbert T. Silverberg, 1952, Televising Old Films—Some New Legal Questions About Performers’ and Proprietors’ Rights, 38 Va.L.Rev. 615. . Compiled from Defendants’ Exhibits AW and AX. . Compilad from Defendants’ Exhibit AJ. . Fanchon & Marco, Inc., v. Paramount Pictures, Inc., 9 Cir., 1954, 215 F.2d 167, 170. See, United States v. Columbia Steel Co., 1948, 334 U.S. 495, 527, 68 S.Ct. 1107, 92 L.Ed. 1533; Gary Theatre Co. v. Columbia Pictures, 7 Cir., 1941, 120 F.2d 891, 894-895; Chorak v. RKO Radio Pictures, Inc., 9 Cir., 1952, 196 F.2d 225, 228-229. . United States v. Colgate & Co., 1919, 250 U.S. 300, 307-308, 39 S.Ct. 465, 63 L.Ed. 992; see, Chicago Seating Co. v. S. Karpen & Bros., 7 Cir., 1949, 177 F.2d 863, 866-867; Windsor Theatre Co. v. Walbrook Amusement Co., 4 Cir., 1951, 189 F.2d 797, 798-799; Naifeh v. Ronson Art Metal Works, Inc., 10 Cir., 1954, 218 F.2d 202, 206-207. . 15 U.S.C.A. § 13(a). . Windsor Theatre Co. v. Walbrook Amusement Co., supra Note 30, 189 F.2d at pages 798-799. Exhibits in the record show that one defendant often would approve a location" }, { "docid": "22952882", "title": "", "text": "the Sherman Act by monopolizing or attempting to monopolize or conspiring to monopolize the production of motion picture films. 4. The consent decree entered herein on November 20, 1940, does not foreclose enforcement in this suit at this time of any rights or remedies, which the plaintiff may have against any of the defendants by virtue of violations of the Sherman Act by them, except such acts as were in accord with such decree during the period it was in force. 5. None of the defendants herein has violated the Sherman Act by combining, conspiring or contracting to restrain trade in any part of the business o»f producing motion pictures or by monopolizing, attempting to monopolize, or conspiring to monopolize such business. 6. The defendants, and each of them are entitled to judgment dismissing all claims of the plaintiff based upon their acts as producers, whether as individuals or in conjunction with others. 7. The defendants Paramount Pictures, Inc.; Paramount Film Distributing Corporation; Loew’s Incprporated; Radio-Keith-Orpheum Corporation, RKO Radio Pictures, Inc.; Keith-Albee-Orpheum Corporation; RKO Proctor Corporation; RKO Midwest Corporation; Warner Bros. Pictures, Inc.; Vitagraph, Inc.; Warner Bros. Circuit Management Corporation; Twentieth Century-Fox Film Corporation; National Theatres Corporation; Columbia Pictures Corporation; Columbia Pictures of Louisiana, Inc.; Universal Corporation; Universal Film Exchanges, Inc.; Big U Film Exchange, Inc.; and United Artists Corporation have unreasonably restrained trade and commerce in the distribution and exhibition of motion pictures and attempted to monopolize such trade and commerce, both before and after the entry of said consent decree, in violation of the Sherman Act by: (a) Acquiescing in the establishment of a price fixing system by conspiring with one another to maintain theatre admission prices; (b) Conspiring with each other to maintain a nation-wide system of runs and clearances which is substantially uniform in each local competitive area. 8. The distributor defendants Paramount Pictures, Inc.; Paramount Film Distributing Corporation; Loew’s, Incorporated ; Radio-Keith-Orpheum Corporation; RKO Radio Pictures, Inc.; Warner Bros. Pictures, Inc.; Vitagraph, Inc.; Twentieth Century-Fox Film Corporation; Columbia Pictures Corporation; Columbia Pictures of Louisiana, Inc.; Universal Corporation; Universal Film Exchanges, Inc.; Big U Film Exchange," }, { "docid": "21202074", "title": "", "text": "SCHNACKENBERG, Circuit Judge. Ross J. Baldwin and Dorothy E. Baldwin, plaintiffs, have appealed from an order of the district court dismissing their civil action against Loew’s Incorporated, a Delaware corporation, Paramount Film Distributing Corporation, a Delaware corporation, RKO Radio Pictures, Inc., a Delaware corporation, Columbia Pictures Corporation, a New York corporation, Warner Bros. Pictures Distributing Corporation, a New York corporation, Warner Bros. Circuit Management Corp., Warner Bros. Theatres, Inc., a New York corporation, Twentieth Century-Fox Film Corporation, a New York corporation, Fox-Wisconsin Amusement Corporation, a Delaware corporation, Fox-Wisconsin Theatres, Inc., a Delaware corporation, United Artists Corporation, a Delaware corporation, and Universal Pictures Corporation, a Delaware corporation. Plaintiffs’ complaint, filed June 26, 1953, and an amended and supplemental complaint presented for filing on June 10, 1957 and actually filed pursuant to leave of court on April 2, 1962, made allegations of facts which were considered by the court in disposing of defendants’ motion for summary judgment. The following statement contains those facts. a. Plaintiffs are and have been since 1931 the owners of the Tosa Theatre, a motion picture theatre in the city of Wauwatosa, Wisconsin. Defendants include all of the major motion picture film distributors in the United States, and at the time this action was commenced they controlled 90% of the production and distribution of motion picture films in the United States. b. In 1931 the Tosa Theatre was the best equipped neighborhood theatre in the Milwaukee area. Plaintiffs then sought from defendants the first playing availability of pictures after they played in the downtown Milwaukee theatres, but the request was refused until a film had played in the Uptown Theatre, an older neighborhood Milwaukee theatre, located over 2 miles from plaintiffs’ theatre. The Uptown was then owned or operated by one of the defendants. Plaintiffs’ theatre was arbitrarily placed by defendants in the same zone as the Uptown Theatre, and, under the rigid zoning and clearance system of film release maintained by defendants in the Milwaukee area, plaintiffs were precluded from playing motion pictures until the picture had first played the Uptown Theatre. c. This situation prevailed until" }, { "docid": "10366613", "title": "", "text": "have attended the prior showing rather than wait for subsequent exhibition, but also because the effects of the advertising and exploitation efforts made when the picture was released will have been vitiated over this time. In general, the greater the total box-office return earned by a film in all showings, the greater will be the distributor’s revenue. * * * “ ‘The relation between run, clearance and zoning, admission price, seating capacity, and. rental fees is indeed a complex one. The range covered by these factors is indicated by this fact: a license fee amounting to many thousands of dollars may be paid for the first showing of a film in a large metropolitan theater, and within a year the same film may be exhibited in some small theater in the same city for a fee of less than $20.’ ” . Schine Chain Theatres v. United States, supra Note 24. . See the writer’s opinion in F. & A. Ice Cream Co. v. Arden Farms Co., D.C.Cal.1951, 98 F.Supp. 180, 184-188. . Fanchon & Marco, Inc., v. Paramount Pictures, D.C.Cal.1951, 100 F.Supp. 84, 95-96; Fanchon & Marco, Inc., v. Paramount Pictures, 9 Cir., 1954, 215 F.2d 167, 169-170; J. J. Theatres, Inc., v. Twentieth Century-Fox Film Corp., 2 Cir., 1954, 212 F.2d 840, 843-845; Bordonaro Bros. Theatres, Inc., v. Paramount Pictures, Inc. 2 Cir., 1949, 176 F.2d 594, 597; Milwaukee Towne Corp. v. Loew’s Inc., 7 Cir., 1951, 190 F.2d 561, 565-568. . That these demands present difficult problems and are not fanciful is evidenced by the decided cases in the courts of this Circuit dealing with the varied problems arising from television exploitation of motion pictures. See, Wexley v. KTTV, Inc., D.C.Cal., 1952, 108 F.Supp. 558, affirmed in Wexley v. KTTV, Inc., 9 Cir., 1955, 220 F.2d 438; Autry v. Republic Productions, Inc., D.C. Cal., 1952, 104 F.Supp. 918, affirmed in Autry v. Republic Productions, Inc., 9 Cir., 1954, 213 F.2d 667; United Artists Corporation v. Strand Productions, 9 Cir., 1954, 216 F.2d 305. See, Herbert T. Silverberg, 1952, Televising Old Films—Some New Legal Questions About Performers’ and" }, { "docid": "17293042", "title": "", "text": "decree on November 8, 1948, as against RKO Radio Pictures, Inc.; (2) consent decree on March 3, 1949, as against Paramount Film Distributing Corporation; (3) judgment on February 8, 1950; as against Universal Film Exchanges, Inc., United Artists Corporation, and Columbia Pictures Corporation, the time for appealing therefrom expiring on April 8, 1950; (4) judgment on February 8, 1950, as against Twentieth Century-Fox Film Corporation, Loew’s Incorporated, and Warner Bros. Pictures Distributing Corporation, the appeal therefrom being disposed of by the United States Supreme Court on October 16, 1950. Although the dates of the various decrees in the Paramount case are of importance, we do not believe they are necessarily the sole criteria by which we must determine when the Paramount case ceased to be “pending” as against eight of the nine defendants served with process herein. (National Theatres Corporation, joined as a party defendant, has not been served with process and is not presently before the Court.) Even though a decree may be issued in an anti-trust suit, the Court may still retain jurisdiction over the parties for the purpose of punishing them for subsequent violations of the decree, as well as for the purpose of granting further relief. Don George, Inc. v. Paramount Pictures, Inc., D.C.La., 1952, 111 F.Supp. 458. In fact, it has been brought to this Court’s attention that further decrees have' been made in the Paramount case as late as February 7, 1952. It is perhaps also noteworthy that the Court of Appeals for the Eighth Circuit has held that a consent decree reserving to the United States the right at the end of three years to seek final relief does not result in terminating the pendency of the action. Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 8 Cir., 1952, 194 F.2d 846. Since consent decrees have been entered in the Paramount case as against two of the defendants in this action, RKO and Paramount, we think testimony should be proffered on the nature of those decrees, as well as on the current status of the Paramount litigation from an enforcement standpoint. Only then" }, { "docid": "23047035", "title": "", "text": "and commerce, * * * in violation of the Sherman Act by: 1 “(a) Acquiescing in the establishment of a price fixing system by conspiring with one another to maintain theatre admission prices; “(b) Conspiring with each other to maintain a nation-wide system of runs and clearances which is substantially uniform in each local competitive area. “8. The distributor defendants Paramount Pictures, Inc.; Paramount Film Distributing Corporation; Loew’s, Incorporated ; Radio-Keith-Orpheum Corporation; RKO Radio. Pictures, Inc.; Warner Bros. Pictures, Inc.; Vitagraph, Inc.; Twentieth Century-Fox Film Corporation; Columbia Pictures Corporation; Columbia Pictures of Louisiana, Inc.; Universal Corporation; Universal Film Exchanges, Inc.; Big U Film Exchange, Inc.; and United Artists Corporation, have unreasonably restrained trade and commerce in the distribution and exhibition of motion pictures and attempted to monopolize such trade and commerce, * * * in violation of the‘Sherman Act by: “(a) Conspiring with each other to maintain a nation-wide system of fixed minimum motion picture theatre admission prices; “(b) Agreeing individually with their respective licensees to fix minimum motion picture theatre admission prices; “(c) Conspiring with each other to maintain a nation-wide system of runs and clearances which is substantially uniform as to each local competitive area; “(d) Agreeing individually with their respective licensees to grant discriminatory license privileges to theatres affiliated with other defendants’ and with large circuits as found in finding No. 110 above; “(e) Agreeing individually with such licensees to grant unreasonable clearance against theatres operated by their competitors ; “(f) Making master agreements and franchises with such licensees; ■ “(g) .Individually conditioning the offer of a license for one .or more copyrighted films upon the acceptance by the licensee of one or more other copyrighted films, except in the case of the United Artists Cor-r poration; ■ “(h) The defendants Paramount and RKO making, formula deals.. “(9) The exhibitor-defendants, . Paramount Pictures, Inc.; Loew’s, Incorporated ; RadioUieith-Orpheum Corporation.; Keith-Albee ;0;rphe.um .Corporation; RKO Proctor Corporation; RKO Midwest Corporation; Warner Bros. Pictures, Inc.; Warner Bros. Circuit Management Corporation; Twentieth Century-Fox Film Corporation; and National Theatres Corporation have unreasonably restrained trade and commerce in the distribution and exhibition of" }, { "docid": "17667770", "title": "", "text": "action by more than two years. As to them the order and summary judgment of the district court is affirmed. As to the other distributor defendants (appellees in No. 11609), the order and summary judgment of the district court, dismissing the complaint of the plaintiff with prejudice, is reversed and the cause remanded for further proceedings consistent with this opinion. As to Fox Wisconsin Theatres, Inc., Fox Wisconsin Amusement Corporation, Wausau Theatres Company, RKO Radio Pictures Incorporated, Paramount Film Distributing Corporation, appellees, affirmed. Costs herein, in No. 11548, are taxed against appellant. As to Twentieth Century Fox Film Corporation, Loew’s Incorporated, Warner Bros. Pictures Distributing Corporation, Universal Film Exchanges, Inc., Columbia Pictures Corporation, United Artists Corporation, appellees, reversed and remanded for further proceedings. Costs herein, in No. 11609, are taxed against the last above mentioned appellees. . 15 U.S.C.A. § 15. . Two of tlie exhibitors informed the court of the dissolution of the fourth exhibitor, i. e., Fox Valley Theatres Corporation. This suggestion has not been challenged and we therefore will ignore that defendant named in the amended complaint. . The affidavit stated inter alia that Warner Bros. Pictures, Inc. (not a party to this suit) and Warner Bros. Pictures Distributing Corporation entered into a consent judgment on January 1, 1951; “that Loew’s Inc. appealed” and the judgment against it was affirmed by the Supreme Court on June 5, 1950, Loew’s, Inc., v. United States, 339 U.S. 974, 70 S.Ct. 1031, 94 L.Ed. 1380, rehearing denied June 29, 1950, and mandate of the Supreme Court filed July 8, 1950, a second petition for rehearing denied on October 16, 1950, 340 U.S. 857, 71 S.Ct. 69, 95 L.Ed. 627 “all in the appeal as to Loew’s, Warner Bros.” (Pictures, Inc.), “and Twentieth Century Fox; that the appeal time expired for United Artists, Columbia, Universal, and Warner Bros. Pictures Distributing Corporation on April 8, 1950. ” . Section 330.21(1), Wisconsin Statutes, 1951. . Section 330.21(1), Wisconsin Statutes, 1951. . This is obviously an error by plaintiff who undoubtedly means § 330.19(4). . In its original form the section under consideration appeared" }, { "docid": "20999882", "title": "", "text": "INGRAHAM, District Judge. Proceeding to modify decree of injunction in an anti-trust action. The amended complaint on which this action was tried sought treble damages and injunc-tive relief under Sections 1 and 2 of the Sherman Act and Sections 4, 12 and 16 of the Clayton Act, 15 U.S.C.A. §§ 1, 2, 15, 22 and 26. A jury verdict in the amount of $20,000 was returned in favor of plaintiff. The court thereafter entered judgment for plaintiff in the amount of $60,000 and, in addition thereto, allowed plaintiff a reasonable attorney’s fee in the amount of $15,000. After hearing further evidence the court also entered a decree of injunction which is the subject of the instant petition. The parties involved are as follows. Plaintiff owns and operates the Delman Theatre, located at 4412 South Main Street, Houston, Texas. Named as defendants were Paramount Pictures, Inc., Paramount Film Distributing Corporation, Loew’s, Incorporated, Twentieth Century-Fox Film Corporation, Warner Brothers Pictures, Inc., Warner Brothers Pictures Distributing Corporation, Radio-Keith-Orpheum Corporation, RKO Radio Pictures, Inc., Columbia Pictures Corporation, Universal Pictures Corporation, Universal Film Exchanges, Inc., and United Artists Corporation, which collectively are referred to as the “distributor defendants”. Also named as defendants were Interstate Circuit, Inc. and Texas Consolidated Theatres, Inc., which, together with Paramount Pictures, Inc. and Loew’s, Incorporated, are referred to as the “exhibitor defendants”. Defendant Paramount Pictures, Inc. owned fifty per cent of the stock in Interstate Circuit, Inc. and Texas Consolidated Theatres, Inc. at the time of the conspiracy complained of. Interstate owned and operated the Metropolitan, Majestic, and Kirby Theatres located iit downtown Houston. Interstate also operated the Alameda (Almeda), River Oaks, Tower, Alabama, and Village The-atres, which latter theatres were found' to be in direct and substantial competition with plaintiff's Delman Theatre. Loew’s, Incorporated owned and operated the Loew’s State Theatre in downtown Houston. The case is before the court upon plaintiff’s petition to modify the decree of injunction, which has been submitted by defendants, plaintiff’s motion for continuance of the hearing on said petition,, and defendants’ objections to plaintiff’s interrogatories. Plaintiff has pending before the court a petition" }, { "docid": "15644926", "title": "", "text": ". Riss & Company, Inc., v. Association of Western Railways, D.C.D.C.1958, 159 F.Supp. 288, 295, 296; De Golia v. Twentieth Century-Fox Film Corp., D.C.N.D.Cal.1953, 140 F.Supp. 316; Ross-Bart Port Theatre, Inc., v. Eagle Lion Films, Inc., D.C.E.D.Va.1954, 140 F.Supp. 401; Don George, Inc., v. Paramount Pictures, Inc., D.C.W.D.La.1951, 111 F.Supp. 458. . Bertha Building Corp. v. National Theatres Corp., 2 Cir., 1957, 248 F.2d 833, 836; Independent Productions Corp. v. Loew’s, Inc., D.C.S.D.N.Y.1957, 148 F.Supp. 460. See also, Hansen Packing Co. v. Armour & Co., D.C.S.D.N.Y.1936, 16 F.Supp. 784. . United States v. Watchmakers of Switzerland Information Center, Inc., D.C.S.D.N.Y.1955, 133 F.Supp. 40, 45. . Eastman Kodak Co. of New York v. Southern Photo Materials Co., 1927, 273 U.S. 359, 373, 47 S.Ct. 400, 71 L.Ed. 684; Pfeiffer v. United Booking Office, Inc., D.C.N.D.Ill.950, 93 F.Supp. 363, 364-65; Sure-Fit Products Co. v. Fry Products, Inc., D.C.S.D.N.Y.1938, 23 F.Supp. 610, 612; Katz Drug Co. v. W. A Sheaffer Pen Co., D.C.W.D.Mo.1932, 6 F.Supp. 210, 212. . Waldron v. British Petroleum Co., Ltd., D.C.S.D.N.Y.1957, 149 F.Supp. 830, 836 upheld a similar service in a similar situation. In each action an alias summons was served on Select Theatre by leaving a copy of the complaint and summons with J. J. Shubert, its president, at the corporate office, 236 W. 44th St., New York City. . Woods v. Zellers, D.C.E.D.Pa.1949, 9 F.R.D. 6. Accord: Hicklin v. Edwards, 8 Cir., 1955, 226 F.2d 410. Contra: Metropolitan Theatre Co. v. Warner Bros. Pictures, D.C.S.D.N.Y.1954, 16 F.R.D. 391; Puett Electrical Starting Gate Corp. v. Thistle Down Co., D.C.N.D.Ohio 1942, 2 F.R.D. 550. . See also, Messing v. Messing, 1952, 84 Pa.Dist. & Co.R. 367, 375. . F.R.Civ.P. 15(a); see Ginsburg v. Stern, D.C.W.D.Pa.1956, 19 F.R.D. 238, 241, order affirmed in part, 3 Cir., 1957, 242 F.2d 379. Certiorari denied 356 U.S. 932, 78 S.Ct. 774, 2 L.Ed.2d 762; Peckham v. Scanlon, 7 Cir., 1957, 241 F.2d 761, 764; Simmons Co. v. Cantor, D.C.W.D.Pa.1943, 3 F.R.D. 197; Pallant v. Sinatra, D.C.S.D.N.Y.1945, 7 F.R.D. 293. . See also, Packaged Programs, Inc., v. Westinghouse Broadcasting Company, Inc., D.C.W.D.Pa.1957, 156 F.Supp." }, { "docid": "21299595", "title": "", "text": "and decrees were entered from which several defendants did not appeal. The sole issue the parties raise here is whether the action was terminated as to the non-appealing defendants when the decrees were entered or when the time to appeal expired. I hold that the Paramount action ceased to be pending upon expiration of the time to appeal, April 8, 1950, for only then would the decrees be final and admissible in private antitrust actions. For cases choosing the same date, see, e. g., Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 8 Cir., 194 F.2d 846, 858, certiorari denied 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348; Leonia Amusement Corp. v. Loew’s, Inc., D.C.S.D.N.Y., 117 F.Supp. 747, 761; Electric Theatre Co. v. Twentieth Century-Fox Film Corp., D.C.W.D.Mo., 113 F.Supp. 937, 944. According to the agreed computation of counsel the effect of fixing the terminated date of the Paramount case at April 8, 1950 is to make the earliest date of the period for which damages may be claimed against Columbia Pictures Corporation, United Artists Corporation, Universal Pictures Company, Inc. and Universal Film Exchanges, Inc., September 14, 1935 in the Skouras case and September 12, 1935 in the Broadway case. The district court’s decision in Paramount was appealed by some defendants and the Supreme Court affirmed and denied a rehearing. Plaintiffs contend that the Paramount action continued to be pending as to the appealing defendants until the dates subsequent to the Supreme Court’s denial of rehearing when consent decrees were entered against each of them. The argument is without merit. When the Supreme Court denied rehearing there were decrees in force as to these defendants which fully adjudicated the alleged antitrust violations. The purpose of the consent decrees that followed was merely to provide a method of enforcing the liability which had already been determined. The Paramount action thus ceased to be pending against the appealing defendants — Warner Brothers Pictures, Inc. (In Dissolution), Warner Brothers Circuit Management Corporation, Warner Brothers Pictures Distributing Corporation and Loew’s, Inc.— when they were denied a rehearing on October 16, 1950. Leonia Amusement" }, { "docid": "21299597", "title": "", "text": "Corp. v. Loew’s, Inc., D.C.S.D.N.Y., 117 F.Supp. 747, 761. According to the agreed computations of counsel the effect of fixing the terminated date of the Paramount case at October 16, 1950 is that as to Warner Brothers Pictures, Inc. (In Dissolution), Warner Brothers Circuit Management Corporation and Warner Brothers Pictures Distributing Corporation, all claims arising before March 6, 1935 in the Skouras case and before December 16, 1934 in the Broadway case are time-barred. Similarly as to Loew’s, Inc., which is named as a defendant in the Broadway case only, all claims in that case arising before March 4, 1935 are time-barred. The next determination sought is the correct period of limitation in the cases of defendants herein who were not defendants in the Paramount action. The defendants in question were organ ized pursuant to decrees in the Paramount case to acquire or succeed to the assets of certain of the Paramount defendants. The pendency of the Paramount action did not, without more, toll the statute of limitations as to those not defendants in that action. See, e. g., Sun Theatre Corp. v. RKO Radio Pictures, Inc., 7 Cir., 213 F.2d 284, 291; Momand v. Universal Film Exchanges, 1 Cir., 172 F.2d 37, 48, certiorari denied 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118. Thus these successor corporations cannot be held liable for any conduct which they either performed or participated in as co-conspirators if such conduct occurred more than six years before the commencement of the present actions. Plaintiffs allege, however, that the successor corporations contracted to assume the obligations and liabilities of their predecessors. Defendants do not deny this allegation. In these circumstances, plaintiffs are entitled to try to establish that they are third-party creditor beneficiaries of the successor corporations’ promises to assume their predecessors’ liabilities. If plaintiffs succeed in demonstrating that they have such a status, then they may, by suit against the successor corporations, enforce liability of the predecessor corporations. See Gordon v. Loew’s Inc., D.C.D.N.J., 147 F.Supp. 398, affirmed on other grounds 3 Cir., 247 F.2d 451. In the event that plaintiffs do show" }, { "docid": "8549719", "title": "", "text": "152 F.Supp. 136 (S.D.N.Y.1946), are not in point. In the Kogan case the court was concerned solely with the question whether a minority stockholder could maintain a derivative suit for an antitrust violation. In the Ozdoba case it is not clear that damages were requested for the alleged section 7 violations, since the action was described by the court as one for treble damages and an injunction for alleged violations of the Sherman and Clayton Acts, and in any event the court did not discuss the problem. The test of a section 7 violation is whether “there is a reasonable probability that the acquisition is likely to result in the condemned restraints.” United States v. E. I. du Pont de Nemours & Co., supra, 353 U.S. at 607, 77 S.Ct. at 884,1 L.Ed.2d 1057. Plaintiffs cannot be damaged by a potential restraint of trade or monopolization. There can be no claim for money damages for a violation of section 7. IV We come next to the Sherman Act claims in this complaint. Here plaintiffs are met with the well-settled rule that a decree is an estoppel only as to the time with which it dealt. International Shoe Mach. Corp. v. United Shoe Mach. Corp., 315 F.2d 449 (1st Cir. 1963) ; Webster Rosewood Corp. v. Sehine Chain Theatres, Inc., supra; Park Neponset Corp. v. Smith, 258 F.2d 452 (1st Cir. 1958); Orbo Theatre Corp. v. Loew's, Inc., 156 F.Supp. 770 (D.D.C. 1957), aff’d per curiam, 104 U.S.App.D.C. 262, 261 F.2d 380 (1958), cert. denied, 359 U.S. 943, 79 S.Ct. 725, 3 L.Ed.2d 677 (1959); Basle Theatres, Inc. v. Warner Bros. Pictures Distrib. Corp., 168 F.Supp. 553 (W.D.Pa.1958); see Theatre Enterprises, Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537, 541, 74 S.Ct. 257, 98 L.Ed. 273 (1954); cf. Bordonaro Bros. Theatres, Inc. v. Paramount Pictures, Inc., 203 F.2d 676, 678 (2d Cir. 1953). The judgment in the government case dealt with the situation as of June 1949. It has already been held that the present plaintiffs may only recover damages for acts occurring after May 4th, 1950. Since plaintiffs are" }, { "docid": "22952885", "title": "", "text": "of one or more other copyrighted films, except in the case of the United Artists Corporation ; (h) The defendants Paramount and RKO making formula deals. 9. The exhibitor-defendants, Paramount Pictures, Inc.; Loew’s Incorporated; Radio-Keith-Orpheum Corporation; Keith-Albee-Orpheum Corporation; RKO Proctor Corporation; RKO Midwest Corporation; Warner Bros. Pictures, Inc.; Warner Bros. Circuit Management Corporation; Twentieth Century-Fox Film Corporation; and National Theatres Corporation have unreasonably restrained trade and commerce in the distribution and exhibition of motion pictures both before and after the entry of said consent decree, in violation of the Sherman Act by: (a) Jointly operating motion picture theatres with each other and with independents through operating agreements or profit-sharing leases; (b) Jointly owning motion picture theatres with each other and with independents through stock interests in theatre buildings; (c) Conspiring with each other and with the distributor-defendants to fix substantially uniform minimum motion pictures theatre admission prices, runs, and clearances ; (d) Conspiring with the distributor-defendants to discriminate against independent competitors in fixing minimum admission price, run, clearance and other license terms. 10. The Formula deals, master agreements and franchises referred to in Findings 86, 88 and 89 have tended to restrain trade and violate Section 1 of the Sherman Act. 11. Block-booking as hereinabove defined, violates the Sherman Act. 12. Further conclusions of law are made and embodied in the decree filed herewith. DECREE. PER CURIAM. The court having rendered its opinion herein on June 11, 1946, 66 F.Supp. 323, having duly considered the proposals of the parties and of amici curiae as to its ( finding’s and judgment, and having filed! its findings of fact and conclusions of law, wherein certain of the defendants herein were found to have violated the Act of Congress approved July 2, 1890, 26 Stat. 209, commonly known as the Sherman Act. It is hereby ordered, adjudged and decreed, as follows: I. 1. The complaint is dismissed as to the defendants Screen Gems, Inc., and the corporation named as Universal Pictures Company, Inc., merged during the pendency of this case into the defendant Universal Corporation. The complaint is also* dismissed as to all" }, { "docid": "13826160", "title": "", "text": "various defendants under said Act involve different transactions and subject matter and should properly be brought against each defendant individually, Rule 20 of the Federal Rules of Civil Procedure, 28 U.S.C. and Baim & Blank, Inc., v. Warren-Connelly Company, Inc., CCH. Trade Reg. (Current) par. 68,388 D.C. S.D.N.Y.1956, 19 F.R.D. 108. 2. Defendants’ motion to dismiss the remainder of plaintiff’s complaint for the reason that the allegations contained therein fail to state a cause of action under the Antitrust Laws of the United States is denied without comment. 3. Defendants’ motion to strike paragraphs 8, 9, 10, 11, 12, 13, 14 and 15 of plaintiff’s complaint, which refers to United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 is granted and leave is hereby granted to plaintiff to file an amended complaint alleging that there was a government action against some of the defendants (naming them), that decrees were entered and that plaintiff intends to rely thereon pursuant to 15 U.S.C.A. § 16 (a). New Dyckman Theatre Corporation v. Radio-Keith-Orpheum Corporation, S.D.N.Y., C.A.No. 93-398, opinion dated March 1, 1955; Normandie Amusement Corporation v. Loew’s, Incorporated, et al., D.C., 140 F.Supp. 257 and Zsirzseri v. Columbia Pictures et ah, C.A.No.20,056, E.D.Pa., Judge Kraft’s order dated May 21, 1956. Judge Dawson’s opinion of March 1, 1955 in the New Dyckman case, supra, was addressed specifically to the question of striking references to United States v. Paramount Pictures substantially similar to those in the instant case. His opinion is deemed pertinent and we therefore quote from it extensively: “The question as to whether references to the Paramount decree may properly appear in an action for triple damages against the defendants, or some of them, who were parties to the Paramount decree, has been before the Court on several occasions. In Yilastor Kent Theatre Corp., et al v. Henry Brandt, et al., Civ.No.90-65, unreported, Judge Ryan struck out the references to the Paramount decree from the complaint on the ground that such matter was purely evidential and not proper in a complaint. In Norman-die Amusement Corporation v. Loew's, et" }, { "docid": "13876670", "title": "", "text": "dealer may come forward and demand that any particular manufacturer sell its vehicles to him for resale at retail. The practice of automobile manufacturers to designate specified distributors and agents, in some communities on an exclusive basis and in others in a limited number, and of refusing to sell to any other dealer, is well established and is sanctioned by law. It follows hence that the defendants had a right to refuse to lease any pictures to the plaintiff at all. A fortiori they had a right to refuse to rent to the plaintiff except after the expiration of certain waiting periods. The only limitation on this general principle is that the defendants may not conspire among themselves not to deal with the plaintiff. As previously indicated, the Court finds that no conspiracy has been established in this case. Accordingly, the Court concludes that the plaintiff is not entitled to recover. Judgment will be rendered for the defendants dismissing the complaint on the merits. This opinion will constitute the findings of fact and conclusions of law, but counsel, if they so desire, may submit additional proposed findings and conclusions. . Theatre Enterprises v. Paramount Film Dist. Corp., 4 Cir., 201 F.2d 306, 314, affirmed 346 U.S. 537, 541, 74 S.Ct. 257, 98 L.Ed. 273; Robbinsdale Amusement Corp. v. Warner Bros. P. Dist. Corp., D.C.D.Minn., 141 F.Supp. 134; G. & P. Amusement Co. v. Regent Theater Co., D.C., 107 F.Supp. 453, affirmed 6 Cir., 216 F.2d 749; Windsor Theatre Co. v. Walbrook Amusement Co., D.C.D.Md., 94 F.Supp. 388; Fanchon & Marco v. Paramount Pictures, Inc., D.C., 100 F.Supp. 84, affirmed 9 Cir., 215 F.2d 167. The case of Milgram v. Loew’s Inc., D.C., 94 F.Supp. 416, affirmed 3 Cir., 192 F.2d 579, on which the plaintiff relies, is distinguishable. In that case the trial judge, after hearing all of the evidence, reached a conclusion as a matter of fact that there was concerted action. The Court of Appeals in affirming the judgment pointed out, however, that mere parallel business practices of themselves are not necessarily sufficient evidence of concerted action (at" }, { "docid": "6727858", "title": "", "text": "whether such a consent decree constitutes any evidence at all under § 5 of the Clayton Act, 15 U.S.C.A. § 16, this Court, since the trial was without a jury, received the decree into evidence. Plaintiff’s attorneys urge that the Court should also consider the findings in the 1946 decree. This decree was not offered in evidence and, in any event, it would not have been admissible since it was not a “final” decree within the meaning of § 5 of the Clayton Act. Fifth and Walnut v. Loew’s Inc., supra. See Duluth Theatre Corporation v. Paramount Pictures, D.C.Minn.1947, 72 F.Supp. 625; Antitrust Enforcement by Private Parties, 61 Yale L.J. 1010, at p. 1040 (1952). However, neither the decree of 1949 nor the previous findings establish that there was a conspiracy in the Los Angeles area which would have prohibited a theatre from operating as an independent first run theatre or from obtaining pictures from various producers or which would have required a theatre to enter into a restrictive franchise or enter into a service agreement as a condition of getting first run pictures. To establish that there was a conspiracy in the Los Angeles area which would have brought about such a result would have required more evidence than the mere submission of the 1949 Paramount decree. Theatre Enterprises, Inc., v. Paramount Filin Distributing Corp., 1954, 346 U.S. 537, 543, 74 S.Ct. 257, 98 L.Ed. 273; Twentieth Century-Fox F. Corp. v. Brookside Th. Corp., 8 Cir., 1952, 194 F.2d 846, 853, 854, certiorari denied 1952, 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348; Dipson Theatres v. Buffalo Theatre, 2 Cir., 1951, 190 F.2d 951, 957, certiorari denied 1952, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 691; see Sun Theatre Corp. v. RKO Radio Pictures, 7 Cir., 1954, 213 F.2d 284, 290. Considerable law on the subject has been developed out of the prolific litigation heretofore instituted by Fanchon & Marco under the anti-trust laws. In Fanchon & Marco v. Paramount Pictures, D.C.S.D.Cal.1951, 100 F.Supp. 84, certiorari denied 1953, 345 U.S. 964, 73 S.Ct. 950, 97 L.Ed. 1383," }, { "docid": "13876671", "title": "", "text": "law, but counsel, if they so desire, may submit additional proposed findings and conclusions. . Theatre Enterprises v. Paramount Film Dist. Corp., 4 Cir., 201 F.2d 306, 314, affirmed 346 U.S. 537, 541, 74 S.Ct. 257, 98 L.Ed. 273; Robbinsdale Amusement Corp. v. Warner Bros. P. Dist. Corp., D.C.D.Minn., 141 F.Supp. 134; G. & P. Amusement Co. v. Regent Theater Co., D.C., 107 F.Supp. 453, affirmed 6 Cir., 216 F.2d 749; Windsor Theatre Co. v. Walbrook Amusement Co., D.C.D.Md., 94 F.Supp. 388; Fanchon & Marco v. Paramount Pictures, Inc., D.C., 100 F.Supp. 84, affirmed 9 Cir., 215 F.2d 167. The case of Milgram v. Loew’s Inc., D.C., 94 F.Supp. 416, affirmed 3 Cir., 192 F.2d 579, on which the plaintiff relies, is distinguishable. In that case the trial judge, after hearing all of the evidence, reached a conclusion as a matter of fact that there was concerted action. The Court of Appeals in affirming the judgment pointed out, however, that mere parallel business practices of themselves are not necessarily sufficient evidence of concerted action (at page 583). Moreover, in that case the conspiracy charged a refusal to treat Drive-In Theaters on the same basis as other theaters for purely arbitrary reasons. . D.C., 66 F.Supp. 323, modified 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260. . Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 571, 71 S.Ct. 408, 95 L.Ed. 534; Partmar Corp. v. Paramount Pictures Theatres Corp., 347 U.S. 89, 90, 91, 102-103, 74 S.Ct. 414, 98 L.Ed. 532. . Theatre Enterprises, Inc., v. Paramount Film Dist. Corp., 346 U.S. 537, 541, 74 S.Ct. 257, 98 L.Ed. 273. . See also Robbinsdale Amusement Corp. v. Warner Bros. P. Dist. Corp., D.C.D.Minn., 141 F.Supp. 134. . Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619; United States v. American Tobacco Co., 221 U.S. 106, 31 S.Ct. 632, 55 L.Ed. 663. . Theatre Enterprises v. Paramount Film Dist. Corp., 4 Cir., 201 F.2d 308, 314, affirmed 346 U.S. 537, 74 S.Ct. 257, 98 L.Ed. 273; Dipson Theatres v. Buffalo" }, { "docid": "23164366", "title": "", "text": "broad and liberal discovery principle consciously built into the Federal Rules of Civil Procedure. ■Questions in the First Category As noted, the questions in the first category relate to Lazarus’ political beliefs, associations and associates. The plaintiffs have charged the defendants with a conspiracy in restraint of trade. One line of defense open to defendants would involve proof that the several defendants^ actions were individual and not conspiratorial. One method of proving this individuality of action is to demonstrate that such action on the part of a particular defendant was reasonably prompted and motivated by a condition which he had good and sufficient reason to believe existed. In order to show that he was both reasonable and sincere in believing that the condition existed, it is permissible to show that the situation did in fact exist. That the reasonableness and good faith of a defendant’s actions are relevant to proof of individual, as distinguished from conspiratorial, activity -is a firmly established rule of evidence. Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 1954, 346 U.S. 537, 74 S.Ct. 257, 98 L.Ed. 273; Fanchon & Marco v. Paramount Pictures Inc., D.C.S.D.Cal.1951, 100 F.Supp. 84, affirmed, 9 Cir., 1954, 215 F.2d 167 (“no parallelism, conscious or unconscious, can overcome a finding of reasonableness”); United States v. Twentieth Century-Fox Film Corporation, D.C.S.D.Cal.1955, 137 F.Supp. 78. All of the questions within the first category are designed to disprove a conspiracy and per contra to prove that genuine and proper business reasons motivated individual conduct on the part of the individual defendants. Keeping in mind the uniqueness of the motion picture business as entertainment and its unavoidable sensitivity to public criticism, the Court clearly perceives that the challenged questions relate directly to matters that bear upon an individual defendant’s decision to do or not to do business with the plaintiffs. Cf. Scott v. RKO Radio Pictures Inc., 9 Cir., 1957, 240 F.2d 87; Twentieth Century-Fox Film Corporation v. Lardner, 9 Cir., 1954, 216 F.2d 844, 51 A.L.R.2d 728; Loew’s Inc. v. Cole, 9 Cir., 1950, 185 F. 2d 641. Plaintiffs argue that the specific factual" }, { "docid": "23047034", "title": "", "text": "AUGUSTUS N. HAND, Circuit Judge. This case comes before us after a decision by the Supreme Court affirming in part and reversing in part our decree and findings of December 31, 1946, 70 F.Sup-p. 53. United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260. Under our findings of fact, we held that there had been violations of Sections 1 and 2 of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1, 2, which were summarized in the conclusions of law as follows : “7. The defendants Paramount Pictures, Inc.; Paramount Film Distributing Corporation; Loew’s Incorporated; Radio-Keith-Orpheum Corporation, RKO Radio Pictures, Inc.; Keith-Albee-Orpheum Corporation; RKO Proctor Corporation; RKO Midwest Corporation; Warner Bros. Pictures, Inc.; Vitagraph, Inc.; Warner Bros. Circuit Management Corporation; Twentieth Century-Fox Film Corporation; National Theatres Corporation; Columbia Pictures Corporation; Columbia Pictures of Louisiana, Inc.; Universal Corporation; Universal Film Exchanges, Inc.; Big U Film Exchange, Inc.; and United Artists Corporation have unreasonably restrained trade and commerce in the distribution and exhibition of motion pictures and attempted to monopolize such trade and commerce, * * * in violation of the Sherman Act by: 1 “(a) Acquiescing in the establishment of a price fixing system by conspiring with one another to maintain theatre admission prices; “(b) Conspiring with each other to maintain a nation-wide system of runs and clearances which is substantially uniform in each local competitive area. “8. The distributor defendants Paramount Pictures, Inc.; Paramount Film Distributing Corporation; Loew’s, Incorporated ; Radio-Keith-Orpheum Corporation; RKO Radio. Pictures, Inc.; Warner Bros. Pictures, Inc.; Vitagraph, Inc.; Twentieth Century-Fox Film Corporation; Columbia Pictures Corporation; Columbia Pictures of Louisiana, Inc.; Universal Corporation; Universal Film Exchanges, Inc.; Big U Film Exchange, Inc.; and United Artists Corporation, have unreasonably restrained trade and commerce in the distribution and exhibition of motion pictures and attempted to monopolize such trade and commerce, * * * in violation of the‘Sherman Act by: “(a) Conspiring with each other to maintain a nation-wide system of fixed minimum motion picture theatre admission prices; “(b) Agreeing individually with their respective licensees to fix minimum motion picture theatre admission prices; “(c) Conspiring" } ]

[ { "docid": "22298742", "title": "", "text": "1984 and discovered the matter had been dismissed. On July 5, 1984, the district court vacated and reentered the judgment. A notice of appeal was filed July 13, 1984 from the judgment granting the Village’s motion to dismiss for failure to state a claim. This court ordered the parties to address the question of timeliness of the appeal. The Village of Lombard did not take that opportunity to argue that the appeal was untimely, nor has it ever challenged the action of the district court granting Rule 60(b)(6) relief. The appellants have submitted essentially the same memorandum as they submitted to the district court in support of their Rule 60(b)(6) motion. We must consider the timeliness of the appeal even though it was not raised by the parties. In re Bassak, 705 F.2d 234, 236 (7th Cir.1983). The time limitations within which an appeal may be taken are mandatory and a condition to the exercise of our jurisdiction. See Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978); Marane, Inc. v. McDonald’s Corp., 755 F.2d 106 (7th Cir.1985); United States v. Roberts, 749 F.2d 404 (7th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 1770, 84 L.Ed.2d 830 (1985); Sanchez v. Board of Regents, 625 F.2d 521, 522 n. 1 (5th Cir.1980). If the district court abused its discretion in extending the appeal period by vacating and reentering judgment, we are without jurisdiction. Rodgers v. Watt, 722 F.2d 456 (9th Cir.1983) (en banc); Kramer v. American Postal Workers Union, AFL-CIO, 556 F.2d 929, 931 (9th Cir.1977) (per curiam); In re Morrow, 502 F.2d 520, 523 (5th Cir.1974). But see Mizell v. Attorney General, 586 F.2d 942, 944-45 n. 2 (2d Cir.1978) (treating the issue as waived by the parties), cert. denied, 440 U.S. 967, 99 S.Ct. 1519, 59 L.Ed.2d 783 (1979). A notice of appeal must be “filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from____” Fed.R. App.P. 4(a)(1). The district court may extend the time for" } ]

[ { "docid": "6521425", "title": "", "text": "PER CURIAM: Petitioner Hector A. Martinez has moved for a certificate of probable cause to permit him to appeal from a judgment entered in the United States District Court for the Eastern District of New York, I. Leo Glas-ser, Judge, denying his petition for a writ of habeas corpus, and has moved for the appointment of counsel in connection with such an appeal. For the reasons that follow, we sua sponte dismiss the appeal for lack of appellate jurisdiction, and we therefore deny the motions as moot. Under Fed.R.App.P. 4(a)(1), a notice of appeal in a civil case to which the United States is not a party must be filed within 30 days of entry of the judgment from which appeal is taken. This requirement is “mandatory and jurisdictional.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam) (internal quotes omitted); Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978). A court of appeals has no authority to extend the time for filing a notice of appeal. See, e.g., Fed.RApp.P. 26(b); Matarese v. LeFevre, 801 F.2d 98, 105 (2d Cir.1986), cert. denied, 480 U.S. 908, 107 S.Ct. 1353, 94 L.Ed.2d 523 (1987). The district court has the power, upon a showing of excusable neglect, to extend the time for filing a notice of appeal if the motion for such an extension is filed not later than 30 days after the expiration of the time provided by Rule 4(a)(1). See Fed.R.App.P. 4(a)(5); Campos v. LeFevre, 825 F.2d 671, 672-76 (2d Cir.1987), cert. denied, 484 U.S. 1014, 108 S.Ct. 718, 98 L.Ed.2d 667 (1988). The district court lacks jurisdiction under Rule 4(a)(5) to grant a motion that is filed beyond the 30-day extension period. See, e.g., Melton v. Frank, 891 F.2d 1054, 1056 (2d Cir.1989) (“If ... the motion to extend is not filed within subdivision (a)(5)’s grace period, the district court is without power to grant an extension.”). In addition to the power granted in Rule 4(a)(5), if the district" }, { "docid": "21886782", "title": "", "text": ". shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from .... Fed.R.App.P. 4(a)(1), 28 U.S.C.A. (Cum. Supp.1980). This rule amplifies the parallel statutory requirement found in 28 U.S.C. § 2107 (1976) and has been held consistently to be both mandatory and jurisdictional, Browder v. Director, Dep’t of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978); Gulf-Tampa Drydock Co. v. Vessel Virginia Trader, 435 F.2d 150, 151 (5th Cir. 1970); Lamb v. Shasta Oil Co., 149 F.2d 729, 730 (5th Cir. 1945). Cf. United States v. Robinson, 361 U.S. 220, 228-29, 80 S.Ct. 282, 287-88, 4 L.Ed.2d 259 (1960). As such, the thirty-day period cannot “be extended regardless of excuse,” id. at 229, 80 S.Ct. at 288 (footnote omitted). Accordingly, we are without jurisdiction to review the district court’s February 6, 1980 dismissal since appeal was noticed therefrom on April 11, 1980. In this case, however, appellant has perfected a timely appeal from the district court’s denial of his motion under Fed.R. Civ.P. 60. The authorities indicate, however, that appellate review of the denial of such a motion “must be narrower in scope than review of the underlying order of dismissal so as not to vitiate the requirement of a timely appeal.” Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382, 386 (5th Cir. 1978); see Browder, supra, 434 U.S. at 263 & n.7, 98 S.Ct. at 560 & n.7, Burnside v. Eastern Airlines, Inc., 519 F.2d 1127 (5th Cir. 1975). Specifically, our review is limited to whether the district court abused its discretion in denying the Rule 60 motion. Browder, supra, 434 U.S. at 263 n.7, 98 S.Ct. at 560 n.7; Burnside, supra. To that question, we now turn. III. Abuse of Discretion The thrust of appellant’s argument is that the district court abused its discretion in not granting postjudgment relief because appellant’s actions were in good faith and because appellant did not intentionally disregard the order compelling discovery. On these facts, we do not hesitate" }, { "docid": "8150664", "title": "", "text": "Dismissed by published opinion. Senior Judge LAY wrote the opinion, in which Judge RUSSELL and Judge MOTZ joined. OPINION LAY, Senior Circuit Judge: Steven M. Alston, an African-American male, appeals from the grant of summary judgment in favor of MCI Telecommunications, Inc. (“MCI”) on his allegation that MCI racially discriminated against him when it terminated him in violation of 42 U.S.C. § 2000e-2(a) and 42 U.S.C. § 1981. The district court granted summary judgment to MCI on the basis that Alston faded to produce any direct or circumstantial evidence that would provide a material issue of fact relating to his claim of racial discrimination. We find this court lacks jurisdiction to review the merits asserted on appeal because the plaintiff failed to file a timely notice of appeal. We therefore dismiss the appeal for lack of jurisdiction. JURISDICTION The district court entered judgment for the defendant on December 30,1994. On January 12,1995, Alston moved to extend the period of time to file a motion to alter or amend the judgment. On January 13, 1995, the district court granted Alston’s motion, extending the period to January 23, 1995. Alston filed his motion to alter or amend the judgment, under Rule 59(e) of the Federal Rules of Civil Procedure, on January 24, 1995. The district court denied this motion on the merits on February 16, 1995. Alston filed his notice of appeal on March 17, 1995. Under the Federal Rules of Appellate Procedure, a party must file a notice of appeal with the district court clerk “within 30 days after the date of entry of the judgment or order appealed from[.]” Fed.R.App.P. 4(a)(1). This time limitation is “ ‘mandatory and jurisdictional.’ ” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960)). The thirty-day time period is deferred, however, if the party makes a “timely motion” under Rule 59(e) or other specified rules. See Fed. R.App.P. 4(a)(4). The thirty-day period may also be extended by the district" }, { "docid": "22047096", "title": "", "text": "to show \"excusable neglect,\" and Thompson filed a timely notice of appeal from that denial. Because the district court clearly did not abuse its discretion in denying Thompson's motion for enlargement of time, we affirm that judgment and dismiss Thompson's appeal. I. Notice of appeal in a civil suit \"must\" be filed within thirty days of the entry of the judgment. Fed.R.App.P. 4(a)(1). This limitation is \"`mandatory and jurisdictional.'\" Shah v. Hutto, 722 F.2d 1167, 1167 (4th Cir.1983) (en banc) (quoting Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978)), cert. denied, 466 U.S. 975, 104 S.Ct. 2354, 80 L.Ed.2d 827 (1984). However, pursuant to Federal Rule of Appellate Procedure 4(a)(5), a district court may extend the time for filing a notice of appeal in certain limited circumstances. While the language of Rule 4(a)(5) could reasonably be interpreted to allow an extension of time upon a showing of either \"good cause\" or \"excusable neglect\" throughout the entire sixty-day time period, the advisory committee notes to the rule make clear that the \"good cause\" standard, which was added to the rule in 1979, is only applicable to motions for extension of time filed within the initial thirty-day period following the entry of judgment: The proposed amended rule expands to some extent the standard for the grant of an extension of time. The present rule requires a \"showing of excusable neglect.\" While this was an appropriate standard in cases in which the motion is made after the time for filing the notice of appeal has run, and remains so, it has never fit exactly the situation in which the appellant seeks an extension before the expiration of the initial time. In such a case \"good cause,\" which is the standard that is applied in the granting of other extensions of time under Rule 26(b) seems to be more appropriate. See Fed.R.App.P. 4(a)(5) advisory committee's notes to 1979 amendment (emphasis added). Based upon this unambiguous directive from the Advisory Committee on the Federal Rules of Appellate Procedure, we now join the overwhelming majority of" }, { "docid": "23605677", "title": "", "text": "31. Months later, on November 19, after appellate briefing had been completed, KFC moved to dismiss the appeal for lack of jurisdiction because of Williams’s late filing. We reserved decision. We now deny KFC’s motion to dismiss and, reaching the merits, conclude that Williams raised a genuine issue of material fact as to KFC’s responsibility for the accident. We therefore vacate the judgment and remand for further proceedings. II. DISCUSSION A. Appellate Jurisdiction Under Rule 4(a), a notice of appeal in a civil case must be filed within 30 days after entry of judgement. Fed. R.App. P. 4(a)(1)(A). The district court may extend that time period if (i) a party moves for the extension no later than 30 days after the time prescribed by Rule 4(a) expires and (ii) the moving party establishes excusable neglect or good cause. Fed. R.App. P. 4(a)(5). Compliance with Rule 4(a) is “mandatory and jurisdictional.” Browder v. Director, Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 363 (2d Cir.2003). This Court has previously explained that “[t]he power of the federal courts to extend this time limitation is severely circumscribed.” Endicott Johnson Corp. v. Liberty Mut. Ins. Co., 116 F.3d 53, 56 (2d Cir.1997). We review for abuse of discretion a district court’s decision to grant or deny an extension of time to file a notice of appeal, but if an appeal is filed outside the time limitations provided in Rule 4(a)(5), we lack jurisdiction. Goode v. Winkler, 252 F.3d 242, 245 (2d Cir.2001). Williams’s motion sought to establish “excusable neglect” solely on the ground that “plaintiffs counsel inadvertently closed plaintiffs case after ... the Court had dismissed her case and the plaintiff failed to instruct [her counsel] to file a Notice of Appeal” and that “plaintiff, recently, on March 21, 2003, contacted [her counsel] and indicated that she wanted [counsel] to file a Notice of Appeal herein.” Appellant Mot. for Ext. of Time. The motion further contended that Williams had “good cause for the instant appeal” because the evidence demonstrated that" }, { "docid": "22047095", "title": "", "text": "No. 94-2173 affirmed and No. 94-1847 dismissed by published opinion. Judge LUTTIG wrote the opinion, in which Judge MURNAGHAN and Judge WILLIAMS joined. OPINION LUTTIG, Circuit Judge: Appellant, Wilma J. Thompson, filed suit against appellee, E.I. DuPont de Nemours & Co. (“DuPont”), under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, and the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12218. The district court granted summary judgment in favor of DuPont on May 25, 1994. Thompson filed her notice of appeal on Monday, June 27, three days after the expiration of the thirty-day time limit set forth in Federal Rule of Appellate Procedure 4(a)(1). Thompson then filed a timely motion for enlargement of time to file a notice of appeal, asserting that she mailed the notice of appeal on Tuesday, June 21, three days before the June 24 deadline, but that the postal service took six days to deliver the letter within the City of Richmond. The district court denied the motion for enlargement of time because Thompson failed to show \"excusable neglect,\" and Thompson filed a timely notice of appeal from that denial. Because the district court clearly did not abuse its discretion in denying Thompson's motion for enlargement of time, we affirm that judgment and dismiss Thompson's appeal. I. Notice of appeal in a civil suit \"must\" be filed within thirty days of the entry of the judgment. Fed.R.App.P. 4(a)(1). This limitation is \"`mandatory and jurisdictional.'\" Shah v. Hutto, 722 F.2d 1167, 1167 (4th Cir.1983) (en banc) (quoting Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978)), cert. denied, 466 U.S. 975, 104 S.Ct. 2354, 80 L.Ed.2d 827 (1984). However, pursuant to Federal Rule of Appellate Procedure 4(a)(5), a district court may extend the time for filing a notice of appeal in certain limited circumstances. While the language of Rule 4(a)(5) could reasonably be interpreted to allow an extension of time upon a showing of either \"good cause\" or \"excusable neglect\" throughout the entire sixty-day time period, the advisory committee notes to the" }, { "docid": "22963167", "title": "", "text": "CHAMBERS, Circuit Judge: The issue before us, and we raise it sua sponte, is whether we have jurisdiction. More specifically, was the district court’s order permitting the filing of an untimely notice of appeal valid? Under Rule 4(a), F.R.A.P., the notice of appeal in this civil case (not involving the United States or its officers or agencies) was required to be filed within 30 days of the entry of judgment. Judgment was entered on April 30,1975; the notice of appeal was due on or before May 30, 1975. Appellants filed a motion for an extension of time on June 10, 1975, seeking relief under the portion of Rule 4(a) that states: “Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.” The motion was filed within the 30-day extension period and was timely. However, the hearing was noticed for July 7, several days after the expiration of the 30-day extension period. The motion was heard on July 7 and the relief granted. The notice of appeal was filed on July 10, 1975, or 71 days after entry of judgment and 11 days after the expiration of the extension period. The language of the rule is not ambiguous. The notice of appeal should have been filed within 30 days of the entry of judgment or within 60 days of entry of judgment if the court granted an extension of time within the terms of Rule 4(a). The provisions of Rule 4(a) are mandatory and jurisdictional, Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4" }, { "docid": "8150665", "title": "", "text": "district court granted Alston’s motion, extending the period to January 23, 1995. Alston filed his motion to alter or amend the judgment, under Rule 59(e) of the Federal Rules of Civil Procedure, on January 24, 1995. The district court denied this motion on the merits on February 16, 1995. Alston filed his notice of appeal on March 17, 1995. Under the Federal Rules of Appellate Procedure, a party must file a notice of appeal with the district court clerk “within 30 days after the date of entry of the judgment or order appealed from[.]” Fed.R.App.P. 4(a)(1). This time limitation is “ ‘mandatory and jurisdictional.’ ” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960)). The thirty-day time period is deferred, however, if the party makes a “timely motion” under Rule 59(e) or other specified rules. See Fed. R.App.P. 4(a)(4). The thirty-day period may also be extended by the district court up to an additional thirty days if the party properly requests an extension of time from the district court “upon a showing of excusable neglect or good cause[.]” Fed.R.App.P. 4(a)(5). A Rule 59(e) motion to alter or amend the judgment “shall be served not later than 10 days after entry of the judgment.” Fed. R.Civ.P. 59(e) (1995). Under the Federal Rules of Civil Procedure, the ten-day time period does not include Saturdays, Sundays, or legal holidays. Fed.R.Civ.P. 6(a). Thus, in order to file a timely Rule 59(e) motion, Alston was required to file his motion by January 17,1995. However, Alston failed to do so, presumably because the district court, on January 13, 1995, granted him an extension of time to file his Rule 59(e) motion to alter or amend the judgment until January 23,1995. It is clear, however, that the district court was without power to enlarge the time period for filing a Rule 59(e) motion. See Fed. R.Civ.P. 6(b) (“[The district court] may not extend the time for taking any action under Rules" }, { "docid": "23680721", "title": "", "text": "CHAMBERS, Circuit Judge: Appellant is a prisoner at the Oregon state prison at Salem, Oregon. He seeks to appeal the dismissal by the district court of his application for a writ of habeas corpus. We do not reach the merits of his appeal as we hold that we have no appellate jurisdiction. The judgment dismissing appellant’s petition was filed and entered on January 5, 1981. The judgment meets the requirements of Rule 58 F.R.Civ.P., and the record indicates that there was no irregularity in serving the judgment on the parties, as required by Rule 77(d), F.R.Civ.P. On Friday, February 6, 1981, the district court received several documents from the appellant. They included a notice of appeal, a motion to proceed in forma pauperis and the supporting Criminal Justice Act affidavit of poverty, a motion for appointment of counsel, and a petition for a certificate of probable cause. Each of the documents was dated February 4, 1981. The district court granted the certificate of probable cause, an attorney was subsequently appointed, and the appeal proceeded in forma pauperis. A habeas corpus action is considered a “civil” matter and thus subject to the time requirements set down in Rule 4(a), F.R.A.P. In a civil appeal not involving the United States government, the notice of appeal must be filed within 30 days of the date of entry of judgment, in this case by Wednesday, February 4, 1981. The 30-day time limit of Rule 4(a) is mandatory and jurisdictional. Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). Rule 4(a)(5) provides for extensions of time in certain circumstances: “The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed in this Rule 4(a). Any such motion which is filed before expiration of the prescribed time may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time" }, { "docid": "22840923", "title": "", "text": "claim against Wright. On appeal, Hinton argues that the district court’s dismissal of his § 1983 claims was in error. JURISDICTION Before reaching the merits of Hinton’s appeal, we must first determine whether Hinton’s notice of appeal was timely filed under Federal Rule of Appellate Procedure 4(a). The time periods established by Rule 4(a) for the filing of a notice of appeal are “mandatory and jurisdictional.” Senjuro v. Murray, 943 F.2d 36, 37 (10th Cir.1991) (quoting Browder v. Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978)). Rule 4(a)(1) requires a notice of appeal in a civil case to be filed “within 30 days after the date of entry of the judgment or order appealed from.” Fed.R.App.P. 4(a)(1). Rule 4(a)(5) permits the district court, “upon a showing of excusable neglect or good cause, [to] extend the time for filing a notice of appeal upon motion filed' not later than 30 days after the expiration of the time prescribed by [Rule 4(a)(1) ].” Fed.R.App.Proc. 4(a)(5). No extension may “exceed 30 days past [the time prescribed by Rule 4(a)(1) ] or 10 days from the date of entry of the order granting the motion, whichever occurs later.” Id. Here, the district court entered its summary judgment order on September 9, 1991, and Hinton filed his notice of appeal on October 10, 1991. Accordingly, Hinton’s appeal was filed one day beyond the 30-day period specified in Rule 4(a)(1). However, Hinton subsequently filed a motion for an extension of time on November 4, 1991. This motion was within the 30-day period permitted by Rule 4(a)(5) and was granted by the district court on November 6, 1991. The effect of the district court’s order was to extend Hinton’s time to file a notice of appeal until November 16, 1991. Notwithstanding this extension of time, however, Hinton never filed a second notice of appeal. Thus, our jurisdiction over Hinton’s appeal depends on whether his otherwise untimely notice of appeal on October 10 was validated by the district court’s approval of his subsequent motion to extend the time to file a" }, { "docid": "8732045", "title": "", "text": "claim of an incomplete and incompetent mental evaluation; and (7) denying various claims on procedural grounds. II. Before addressing Sidebottom’s claims, we must first consider the State’s challenge to our jurisdiction over this appeal. The State contends that Sidebottom filed his notice of appeal outside the time limitation provided in Rule 4(a)(5) of the Federal Rules of Appellate Procedure. Rule 4(a)(1) of the Federal Rules of Appellate Procedure requires that a notice of appeal must be filed in the district court “within thirty days after the date of entry of the judgment or order appealed from.” Upon a showing of excusable neglect, the district court may extend the time for filing a notice of appeal upon a motion filed not later than thirty days after expiration of the thirty-day period prescribed under Rule 4(a)(1). Fed. R.App.P. 4(a)(5). The time limits set forth in Rule 4 are “mandatory and jurisdictional.” Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978). The State argues that Sidebottom’s notice of appeal was due on August 25, 1993, thirty days after the district court’s initial entry of its order on July 26, 1993, denying Sidebot-tom’s Rule 59(e) motion. Thus, according to the State, Sidebottom’s notice of appeal filed on November 12, 1993, is untimely because the district court had no authority under Rule 4(a)(5) to extend the time period for filing a notice of appeal beyond September 24, 1993. See Fed.R.App.P. 4(a)(1), (4), (5). Although Rule 4(a)(5) prohibits the district court from granting more than a thirty-day extension of time to file a notice of appeal, we have recognized that an appeal may be allowed under certain “unique circumstances.” Estle v. Country Mutual Insurance Co., 970 F.2d 476, 478 (8th Cir.1992) (quoting Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 217, 83 S.Ct. 283, 285, 9 L.Ed.2d 261 (1962) (per curiam)). “ ‘[T]he unique circumstances exception to rule 4(a) protects a party who reasonably relied on erroneous district court action that caused the party to file an untimely notice of appeal.’" }, { "docid": "23059050", "title": "", "text": "was excusable in light of information they received from the district court clerk’s office. They maintain that we thus have jurisdiction over the appeal and should decide the case on its merits. A. General Rule We turn first to the Federal Rules of Appellate Procedure. Those rules provide that a notice of appeal in a civil case to which the United States is not a party must be filed within 30 days of entry' of the judgment from which the appeal is taken. See Fed. R.App. P. 4(a)(1). Rule 4(a), which-sets out the 30-day time limit within which this appeal had to have been taken, serves the salutary purpose of fixing the point at which litigation shall end — if an appeal has not been taken before-that date — thereby relieving prospective appellees of the demands appellant is making against them. The Rule 4(a) time limit is mandatory, and when an appeal is taken beyond the time set out in the Rule, an appellate court is, without jurisdiction to entertain and decide it. Thus, the limit is said to be “mandatory and jurisdictional.” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). The time period for filing a notice of appeal. can be extended only in certain narrow circumstances, including the timely filing of one of the tolling motions specified under Fed. RApp. P. 4(a)(4), which encompasses motions under Fed.R.Civ.P. 59 to amend the judgment or for a new trial. Fed. R.App. P. 4(a)(4)(iii)-(iv). Upon denial of one of these motions, the 30-day period starts anew. But, to receive the benefit of this tolling effect, the .appealing party must file the amending motion within ten days of the entry of the underlying judgment. See Fed. R. Civ. P 6(b), 59(b); Fed. RApp. P. 4(a)(4). Having discussed the Rules, we pass next .to their application in the case at hand. The original judgment -was entered on November 26, 1997 and appellants thereafter filed two motions: a motion for a new trial and a motion to reconsider. Both motions were filed on December 15," }, { "docid": "23680722", "title": "", "text": "forma pauperis. A habeas corpus action is considered a “civil” matter and thus subject to the time requirements set down in Rule 4(a), F.R.A.P. In a civil appeal not involving the United States government, the notice of appeal must be filed within 30 days of the date of entry of judgment, in this case by Wednesday, February 4, 1981. The 30-day time limit of Rule 4(a) is mandatory and jurisdictional. Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). Rule 4(a)(5) provides for extensions of time in certain circumstances: “The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed in this Rule 4(a). Any such motion which is filed before expiration of the prescribed time may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to the other parties in accordance with local rules. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of the entry of the order granting the motion, whichever occurs later.” This language was adopted in 1979. Pri- or to the 1979 amendments, the pertinent portion of Rule 4(a) stated that: “Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.” In this ease there was no motion for extension of time by the appellant. The untimeliness of the notice of appeal was apparently not detected either" }, { "docid": "22303007", "title": "", "text": "notice of appeal was timely filed. The timely filing of a notice of appeal is mandatory and jurisdictional. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225; Browder v. Director, Illinois Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521; United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259; Wort v. Vierling, 778 F.2d 1233, 1234 (7th Cir.1985). Fed.R.App.P. 4(a)(1) requires that a notice of appeal in a civil case, other than one to which the United States or an officer or agency thereof is a party, be filed with the clerk of the district court within 30 days after the entry of the judgment or order appealed from. Because the order dismissing the amended complaint in this case was entered on April 2, 1985, the plaintiff should have filed his notice of appeal no later than May 2, 1985. In fact, plaintiff’s notice was not filed until May 7, 1985. Upon being notified of his error, plaintiff promptly filed on May 17, 1985, a motion with the district court requesting an extension of time in which to file his notice of appeal pursuant to Fed.R.App.P. 4(a)(5). Rule 4(a)(5) provides that “[t]he district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a).” Finding that the plaintiff had demonstrated “excusable neglect” for his failure to file within the original thirty-day period, the district court granted plaintiff’s motion and extended the time for appeal until May 7, 1985. Defendant Continental attacks the district court’s order on essentially two grounds. Initially, Continental contends that the district court applied an incorrect legal standard in granting plaintiff’s motion for an extension of time to appeal. As set out above, Fed.R.App.P. 4(a)(5) permits a district court to grant such a motion upon a showing of “excusable neglect or good cause.” The Advisory Committee notes indicate that “excusable" }, { "docid": "21886781", "title": "", "text": "the Court’s order compelling discovery pursuant to Rule 37(b) of the Federal Rules of Civil Procedure.” See Record at 191. On December 18,1979, appellee so moved; specifically, it sought to dismiss the complaint and to require appellant to pay the expenses occasioned by his disobedience. Appellant answered the motion on January 16, 1980, and finally provided appellee with the executed power of attorney on January 25, 1980. By order dated February 6, 1980, however, the district court granted appel-lee’s motion, thereby dismissing appellant’s complaint with prejudice. Appellant filed, on February 15, 1980, a motion for relief under Fed.R.Civ.P. 60, which was denied on March 12, 1980. On April 11, 1980 appellant noticed an appeal purporting to embrace both the February 6 final order of dismissal and the March 12 denial of post-judgment relief. II. Appellate Jurisdiction The Federal Rules of Appellate Procedure provide: In a civil case ... in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required . . . shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from .... Fed.R.App.P. 4(a)(1), 28 U.S.C.A. (Cum. Supp.1980). This rule amplifies the parallel statutory requirement found in 28 U.S.C. § 2107 (1976) and has been held consistently to be both mandatory and jurisdictional, Browder v. Director, Dep’t of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978); Gulf-Tampa Drydock Co. v. Vessel Virginia Trader, 435 F.2d 150, 151 (5th Cir. 1970); Lamb v. Shasta Oil Co., 149 F.2d 729, 730 (5th Cir. 1945). Cf. United States v. Robinson, 361 U.S. 220, 228-29, 80 S.Ct. 282, 287-88, 4 L.Ed.2d 259 (1960). As such, the thirty-day period cannot “be extended regardless of excuse,” id. at 229, 80 S.Ct. at 288 (footnote omitted). Accordingly, we are without jurisdiction to review the district court’s February 6, 1980 dismissal since appeal was noticed therefrom on April 11, 1980. In this case, however, appellant has perfected a timely appeal from" }, { "docid": "7338956", "title": "", "text": "remanding record for determination whether to grant Motion for Stay). The time limit for noticing an appeal is both mandatory and jurisdictional. See Browder v. Director, Dep’t of Corr. of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Moore v. South Carolina Labor Bd., 100 F.3d 162, 163 (D.C.Cir.1996) (per curiam). A district court may extend the time to file a notice of appeal if the party files a motion within 30 days after the time prescribed by the rule expires, and if the party shows excusable neglect or good cause. See Fed. R.App. P. 4(a)(5)(A). In a case such as this, the 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)(A). In no case may an extension of time “exceed 30 days after the prescribed time or 10 days after the date when the order granting the motion is entered, whichever is iater.” Fed. RApp. P. 4(a)(5)(C). Plaintiff meets the first requirement because he filed his motion to extend the time to file his notice of appeal on December 14, 2007, which by the Court’s count is exactly 30 days after the last day on which his notice was due. Plaintiffs motion fails, however, because he shows neither excusable neglect nor good cause for the extension of time. - The Advisory Committee’s Note to the 2002 Amendments to Rule 4(a)(5)(A)(ii) distinguishes “excusable neglect” from “good cause” as follows: The excusable neglect standard applies in situations in which there is fault; iñ such situations,'the need for an exten sion is usually occasioned by something within the control of the movant. The good cause standard applies in situations in which there is no fault — excusable or otherwise. In such situations, the need for an extension is usually occasioned by something that is not within the control of the movant. Fed. R.App. P. 4(a)(5)(A)(ii), Advisory Committee’s Notes to 2002 Amendments. Plaintiff does not address the matter of excusable neglect. Rather, he states that he “had good cause for inability to" }, { "docid": "21639745", "title": "", "text": "read the Dismissal Order. To the extent that Palmer now contends that the district court’s decision to dismiss rather than amend the pre-AEDPA motion was “mistaken,” the time to challenge that aspect of the Dismissal Order is long past. A motion to alter or amend a judgment must be filed no later than 10 days after entry of the judgment. See Fed. R. Civ. Pro. 59(e). In addition, a federal prisoner appealing the dismissal of a section 2255 petition must file the notice of appeal within 60 days of final judgment although the district court may, upon a showing of good cause, extend the period an additional 30 days. See Rules Governing Section 2255 Proceedings For the United States District Courts, Rule 11 (“time for appeal from an order entered on a motion for [section 2255] relief ... is as provided in Rule 4(a) of the Federal Rules of Appellate Procedure”); Fed. R.App. P. 4(a)(1) (in civil case where United States is party, notice of appeal must be filed within sixty days after date of entry of final judgment). The specified period is “mandatory and jurisdictional.” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960)). It applies to a pro se section 2255 motion as well. See Kapsalis v. Wilson, 380 F.2d 365, 366 (9th Cir.) (rejecting pro se petitioner’s appeal as untimely), cert. denied, 389 U.S. 878, 88 S.Ct. 180, 19 L.Ed.2d 168 (1967). Were we to conclude that Palmer by his motion to amend intended to withdraw his previously filed motion to dismiss and instead to adopt the FPD 2255 Motion, that motion was dismissed. Palmer failed to move the court to reconsider the ruling, to appeal the dismissal or to challenge the district court’s failure to rule on his outstanding motion to amend. By failing to file a notice of appeal, Palmer has waived his right to now argue that the dismissal was “mistaken.” Because the FPD 2255 Motion filed before" }, { "docid": "22860579", "title": "", "text": "to the facts of this case, and we therefore dismiss for lack of jurisdiction. A. The Supreme Court has repeatedly emphasized that the requirement of a timely notice of appeal is “mandatory and jurisdictional.” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). See also Alston v. MCI Communications Corp., 84 F.3d 705, 706 (4th Cir.1996). Under the Federal Rules of Appellate Procedure, a party to a lawsuit involving the United States must file a notice of appeal within sixty days after entry of the judgment or order appealed from. Fed.R.App.P. 4(a)(1)(B). However, if a party files a timely motion in the district court to alter or amend the judgment under Rule 59(e), the time to file a notice of appeal runs from the entry of the order disposing of the Rule 59(e) motion. Fed.R.App.P. 4(a)(4). An untimely Rule 59(e) motion does not defer the time for filing an appeal, which continues to run from the entry of the initial judgment or order. Browder, 434 U.S. at 264, 98 S.Ct. 556. The timeliness of appellants’ notice of appeal thus depends entirely upon whether their Rule 59 motion was timely. A motion to alter or amend the judgment under Rule 59(e) is timely only if filed within ten days after entry of the judgment, not including Saturdays, Sundays, or legal holidays. Fed.R.Civ.P. 59(e) (A motion under Rule 59(e) “shall be filed no later than 10 days after entry of the judgment.”) (emphasis added); Fed.R.Civ.P. 6(a) (computation of time where a prescribed period is less than eleven days). The district court “may not extend the time for taking any action under Rules ... 59(b), (d) and (e), except to the extent and under the conditions stated in them.” Fed.R.Civ.P. 6(b). Rule 59(e), in turn, simply does not provide any mechanism for extending the prescribed ten-day filing deadline. Thus, the Federal Rules clearly prescribe that a motion under Rule 59(e) must be filed within ten days after entry of the judgment, and the Rules just as clearly provide the district court with no authority to" }, { "docid": "16773825", "title": "", "text": "District Court’s October 5 order was an appealable interlocutory order under 28 U.S.C. § 1292(a)(1). The appeal from that order was, however, not timely. Federal Rule of Appellate Procedure 4(a)(1) provides that a notice of appeal must be filed within thirty days of the date of entry of the order appealed from. Denley’s notice of appeal was filed seventy-eight days after the October 5 order. The thirty-day period is mandatory and jurisdictional and may not be extended for substantial compliance or otherwise. E.g., Browder v. Director, Dept. of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Moorer v. Griffin, 575 F.2d 87 (6th Cir.1978); Schlink v. Chesapeake & Ohio Railway Co., 276 F.2d 116 (6th Cir.1960). Federal Rule of Appellate Procedure 4(a)(4) provides that the filing of a timely motion for reconsideration will extend the period for filing an appeal until thirty days after the order disposing of the motion. Denley’s pro se petition was considered a motion for reconsideration by the District Court, although never docketed. Reconsideration was not denied until November 26, within thirty days of the notice of appeal. However, in order to extend the time for appeal a motion for reconsideration must be timely. Browder, 434 U.S. 257, 264-65, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978); Schlink, 276 F.2d 116, 117 (6th Cir.1960). Federal Rule of Civil Procedure 59(e) provides that such a motion must be brought within ten days after entry of the judgment. The October 27 motions were brought twenty-two days after the order appealed from, and were therefore untimely. That the District Court nonetheless considered the motion cannot affect the timeliness of the appeal; the District Court is without power to enlarge the time for making Rule 59(e) motions. Fed.R.Civ.P. 6(b). See also, e.g., Textile Banking Co. v. Rentschler, 657 F.2d 844, 849 (7th Cir.1981); Scola v. Boat Frances, R., Inc., 618 F.2d 147, 154 (1st Cir.1980). The District Court’s pronouncement of November 26 that the appeal could be taken within thirty days of that date can also not be considered an extension of time in which to appeal" }, { "docid": "8732044", "title": "", "text": "been appointed as a state circuit judge and to allow replacement counsel to become familiar with the case. On October 15, 1993, the district court reissued its order of July 26, 1993, denying Sidebot-tom’s Rule 59(e) motion. Sidebottom then filed a notice of appeal on November 12, 1993. Meanwhile, sometime around June 13, 1993, Sidebottom filed a motion with the Missouri Supreme Court requesting that the court withdraw its mandate. On July 23, 1993, Sidebottom filed a petition for a writ of habeas corpus with the Missouri Supreme Court under Mo.Sup.Ct.R. 91. On August 17, 1993, the Missouri Supreme Court summarily denied the habeas corpus petition and rejected the motion to recall the mandate. On appeal to this court, Sidebottom argues that the district court erred in (1) denying his request for an evidentiary hearing; (2) rejecting his claims of ineffective assistance of post-conviction counsel; (3) rejecting his claims of ineffective assistance of trial counsel; (4) rejecting his claims of ineffective assistance of appellate counsel; (5) rejecting his claims of prosecutorial misconduct; (6) rejecting his claim of an incomplete and incompetent mental evaluation; and (7) denying various claims on procedural grounds. II. Before addressing Sidebottom’s claims, we must first consider the State’s challenge to our jurisdiction over this appeal. The State contends that Sidebottom filed his notice of appeal outside the time limitation provided in Rule 4(a)(5) of the Federal Rules of Appellate Procedure. Rule 4(a)(1) of the Federal Rules of Appellate Procedure requires that a notice of appeal must be filed in the district court “within thirty days after the date of entry of the judgment or order appealed from.” Upon a showing of excusable neglect, the district court may extend the time for filing a notice of appeal upon a motion filed not later than thirty days after expiration of the thirty-day period prescribed under Rule 4(a)(1). Fed. R.App.P. 4(a)(5). The time limits set forth in Rule 4 are “mandatory and jurisdictional.” Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978). The State argues that Sidebottom’s notice" } ]

[ { "docid": "14292889", "title": "", "text": "NIES, Circuit Judge. This appeal from the decision of the U.S. Patent and Trademark Office (PTO) Trademark Trial and Appeal Board (TTAB or board), reported at 220 USPQ 260 (1984), affirming the examiner’s refusal to register DARTY as a service mark on the Principal Register. Refusal is based on the ground that DARTY is “primarily merely a surname” within the meaning of Section 2(e)(3) of the Lanham Act (15 U.S.C. § 1051 et seq.), and, thus, is not registrable on the Principal Register in the absence of evidence that the name has become distinctive of the applicants’ goods in commerce, as specified in Section 2(f). The board correctly recognized that the PTO had the burden of establishing a prima facie case that DARTY is “primarily merely a surname.” In re Kahan & Weisz Jewelry Mfg. Corp., 508 F.2d 831, 832, 184 USPQ 421, 422 (CCPA 1975); In re Harris-Intertype Corp., 518 F.2d 629, 630, 186 USPQ 238, 239 (CCPA 1975). This burden was found to have been met by evidence that: (i) DARTY is the surname of the president of appellant; (ii) DARTY appears as a surname in a number of telephone directories across the nation; and (iii) DAR-TY does not appear in dictionaries as a French or English word. Appellant submitted no evidence that the expression DARTY has any non-surname significance, but rather, attacks the suffi ciency of the PTO’s prima facie case. Principally, appellant maintains that DAR-TY is so unusual a surname that the public would be likely to perceive it as a coined term, the word “dart” with an added “y”, rather than as a surname. The statute in Section 2(e)(3) (15 U.S.C. § 1052(e)(3)) reflects the common law that exclusive rights in a surname per se can not be established without evidence of long and exclusive use which changes its significance to the public from a surname of an individual to a mark for particular goods or services. The common law also recognizes that surnames are shared by more than one individual, each of whom may have an interest in using his surname in business, and" } ]

[ { "docid": "14292894", "title": "", "text": "insufficient in another because of differences in the names themselves. We do not know how DUCHARME was displayed, but we can see that it was likely to be taken as a fanciful mark for watches derived from the apt word “charm.” Here there is no rela tionship between the word “dart” and repair, maintenance, and distributorship services, which would lead one to think of that word from the use of DARTY as the mark for such services. We conclude that in view of the uncontrovertable evidence of surname usage of record, and the unpersuasiveness of appellant’s argument that DARTY would be understood as a play on the word “dart,” the board’s finding that DARTY is primarily merely a surname is not clearly erroneous. Stock Pot Restaurant, Inc. v. Stockpot, Inc., 737 F.2d 1576, 1578-79, 222 USPQ 665, 666-67 (Fed.Cir.1984) (factual findings of TTAB reviewed under the “clearly erroneous” standard). Nor can we accept appellant’s further argument that, because the application is based on foreign priority, proof of distinctiveness cannot be required. Section 44(d)(2) merely excuses certain foreign applicants from alleging use in commerce to secure a registration under the statute. The section does not require that registration be afforded on the Principal Register, as opposed to the Supplemental Register, in the absence of a showing of secondary meaning acquired by use in this country. Indeed, Section 44(e) specifically directs issuance of a registration on the Principal Register only “if eligible.” Accordingly, we affirm the decision of the board upholding the rejection of the subject application under § 2(e)(3). AFFIRMED. . Application Serial No. 319,502, filed July 17, 1981 (claiming priority under Section 44(d) of the Trademark Act based on an application for registration filed in France on March 12, 1981), by Etablissements Darty et Fils, a French corporation, to register the mark DARTY for: repair and maintenance of audio visual equipment, radios, televisions, photographic and movie cameras, high fi systems, tape recorders, household electrical appliances, furniture, bathroom equipment and domestic equipment in Class 37, distributorship services in the fields of audio visual equipment, radios, television, photographic and movie cameras, high" }, { "docid": "17118274", "title": "", "text": "of Section 2(e) (3) of the Trademark Act of 1946”. Section 2 of the Trademark Act of 1946 [15 USC 1052] provides that: “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it * * * (e) Consists of a mark which * * * (3) is primarily merely a surname”. In defense of its right of registration, applicant points out that the surname “SCHAUB” also means in the German language “a bundle of straw, sheaf”, and that the surname “LORENZ” is also the name of a city in West Virginia and of a city in Brazil, in consequence of which, applicant strenuously argues that its mark cannot properly be considered as primarily merely a surname. We are firmly of the opinion that, to the average member of the purchasing public, neither “SCHAUB” nor “LORENZ” would be likely to have any meaning other than as surnames. It is concluded, therefore, that applicant’s mark is “primarily merely a surname” within the meaning of the Act, and hence that it is not proper subject matter for registration on the Principal Register in the absence of a showing that it has acquired in this country a secondary meaning of indicating origin in applicant of the goods to which it is applied. See Kimberly-Clark Corporation v. Marzall, Comr., Pats., [90 U.S. App.D.C. 409, 196 F.2d 772] 93 USPQ 191 (CA DC, 1952). In addition to the evidence submitted by appellant as to the meaning of SCHAUB and LORENZ, appellant argues that various city telephone directories do not disclose any listing of SCHAUB-LORENZ. The examiner cites the fact that various city telephone directories disclose listings of SCHAUB and LORENZ individually. Appellant also argues here that the mark has become known and registered in many countries. The solicitor replies that no evidence to this effect was submitted by appellant. Appellant also cited Registration No. 386,174 of March 25, 1941, for LORENZ, now expired, as evidence that the mark here is not primarily merely a" }, { "docid": "23516777", "title": "", "text": "had not acquired distinctiveness, under § 2(f) of the Lanham Act, as a source-identifier, and accordingly affirmed the examining attorney’s refusal to register Pacer’s adhesive container cap as a trademark. Pacer timely appealed, and this court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(B). II. DISCUSSION A. Standard of Review This court reviews the Board’s legal conclusions de novo, In re Int’l Flavors & Fragrances Inc., 183 F.3d 1361, 1365 (Fed.Cir.1999), and the Board’s factual findings for substantial evidence, On-Line Careline, Inc. v. Am. Online, Inc., 229 F.3d 1080, 1085 (Fed.Cir.2000). Substantial evidence is “more than a mere scintilla” and “such relevant evidence as a reasonable mind would accept as adequate” to support a conclusion. Consol. Edison v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Whether an asserted mark is inherently distinctive is a factual determination made by the Board. Hoover Co. v. Royal Appliance Mfg. Co., 238 F.3d 1357, 1359 (Fed.Cir. 2001). B. Inherent Distinctiveness The Board found that Pacer’s container cap was not inherently distinctive and thus nonregistrable as a mark, based solely on the eleven design patents of container caps. The Board also found that Pacer could not demonstrate that its adhesive container caps had acquired distinctiveness, which Pacer does not dispute on appeal. Therefore, the sole issue presented on appeal is whether the design patents constitute substantial evidence to support the Board’s finding of no inherent distinctiveness. It is well established that the PTO has the burden to establish a prima facie case of no inherent distinctiveness. See, e.g., In re Gyulay, 820 F.2d 1216 (Fed.Cir.1987) (stating that the Board did not err in affirming the examiner’s prima facie case that the mark was merely descriptive); In re Loew’s Theatres, Inc., 769 F.2d 764, 768 (Fed.Cir.1985) (stating that the PTO made a prima facie case showing that the asserted mark was primarily geographically deceptively misdescriptive); In re R.M. Smith Inc., 734 F.2d 1482, 1484 (Fed.Cir. 1984) (stating that the PTO established a prima facie case of de jure functionality of the asserted mark). Once the PTO sets forth a sufficient prima" }, { "docid": "17118279", "title": "", "text": "the courts. As stated by Assistant Commissioner Leeds in the Rivera case, 106 USPQ at 146: The decisions interpreting the phrase “primarily merely a surname” are not altogether consistent, nor do they establish clear guide lines for future determinations. The examiner and the Trademark Trial and Appeal Board rely to a large extent on the Kimberly-Clark case, supra, which involved two cases consolidated on appeal. The first case concerned a mark whose dominant portion was “Kimberly Clark.” It was refused registration under paragraph 5 of the Trademark Act of 1905 which denied registration of a mark which consisted merely of the name of a corporation. There is no similar issue present here as the mark sought to be registered is not the name of the appellant corporation. In an action brought by appellant in the U. S. District Court, D.C., under R.S. 4915, the complaint was dismissed and the appeal to the Circuit Court of Appeals, D.C., followed. On this aspect of the decision it would seem that there was no occasion for the Court of Appeals to express its opinion as to the import of section 2(e) (3) of the Trademark Act of 1946. The second ease involved the registra-bility of the mark “Kimberly-Clark” on the Principal Register under the 1946 Act. The Commissioner had offered registration on the Supplemental Register. The refusal to register the mark was made under section 2(e) (3) as a mark which was primarily merely a surname. The Court of Appeals affirmed “[f]or the reasons given in our discussion” of the first case, 196 F.2d at 775. It is not clear why the Court of Appeals in Kimberly-Clark refused registration on the Principal Register when, according to the court’s opinion, “secondary significance” had been shown, 196 F.2d at 774. See section 2(f) of the Trademark Act of 1946 (15 U.S.C. § 1052(f)). As the board here commented, if appellant had shown “secondary meaning,” section 2(f), then section 2(e) (3) expressly presents no bar to registration on the Principal Register. As to this aspect we agree with the board. Nonetheless the board was of the" }, { "docid": "6348943", "title": "", "text": "MILLER, Judge. This appeal is from the. decision of the Patent and Trademark Office (PTO) Trademark Trial and Appeal Board (one member dissenting), 182 USPQ 635 (1974), adhered to on reconsideration, affirming the examiner’s ex parte refusal to register “HARRIS” for “electronic equipment, namely — video display terminals for editing and proofing text preparatory to typesetting,” application serial No. 397,896, filed July 21, 1971, claiming first use in interstate commerce at least as early as June 6, 1970. We affirm. Registration was refused by the examiner on the ground that “HARRIS” is primarily merely a surname, citing subsection 2(e)(3), 15 U.S.C. § 1052(e)(3). Appellant does not rely on subsection 2(f) by arguing that “HARRIS” has become distinctive of its goods. Instead, it argues that “HARRIS” has such well-known “secondary meanings” (i. e. non-surname denotations) that it is not primarily merely a surname. It properly points out that the burden is on the PTO to prove that “HARRIS” is primarily merely a surname and argues that even if telephone directory listings relied upon by the examiner were to be regarded as a prima facie showing that “HARRIS” is primarily merely a surname, appellant’s evidence of “secondary meanings” rebuts such showing. The meaning of “primarily merely a surname” was considered by this court in In re Kahan & Weisz Jewelry Mfg. Corp., 508 F.2d 831 (1975), where we said it was necessary to determine “the primary significance of the mark to the purchasing public” and adopted the following reasoning from Ex parte Rivera Watch Corp., 108 USPQ 145, 149 (Com’r Pats.1955): A trademark is a trademark only if it, is used in trade. When it is used in trade it must have some impact upon the purchasing public, and it is that impact or impression which should be evaluated in determining whether or not the primary significance of a word when applied to a product is a surname significance. If it is, and it is only that, then it is primarily merely a surname. Thus, the determining factor is the primary (not secondary) significance to the public or “the purchasing public.” 1" }, { "docid": "14292895", "title": "", "text": "certain foreign applicants from alleging use in commerce to secure a registration under the statute. The section does not require that registration be afforded on the Principal Register, as opposed to the Supplemental Register, in the absence of a showing of secondary meaning acquired by use in this country. Indeed, Section 44(e) specifically directs issuance of a registration on the Principal Register only “if eligible.” Accordingly, we affirm the decision of the board upholding the rejection of the subject application under § 2(e)(3). AFFIRMED. . Application Serial No. 319,502, filed July 17, 1981 (claiming priority under Section 44(d) of the Trademark Act based on an application for registration filed in France on March 12, 1981), by Etablissements Darty et Fils, a French corporation, to register the mark DARTY for: repair and maintenance of audio visual equipment, radios, televisions, photographic and movie cameras, high fi systems, tape recorders, household electrical appliances, furniture, bathroom equipment and domestic equipment in Class 37, distributorship services in the fields of audio visual equipment, radios, television, photographic and movie cameras, high fi systems, tape recorders, household electrical appliances, furniture, bathroom equipment, domestic equipment, sporting equipment and clothing in Class 42. . Sections 2(e)(3) and 2(f) provide: No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it— ****** (e) Consists of a mark which ... (3) is primarily merely a surname. (f) Except as expressly excluded in paragraphs (a)-(d) of this section, nothing in this chapter shall prevent the registration of a mark used by the applicant which has become distinctive of the applicant's goods in commerce. The Commissioner may accept as prima facie evidence that the mark has become distinctive, as applied to the applicant’s goods in commerce, proof of substantially exclusive and continuous use thereof as a mark by the applicant in commerce for the five years next preceding the date of the filing of the application for its registration. . Section 44(d)(2) provides: (d) An application for registration of a mark under" }, { "docid": "6169561", "title": "", "text": "v. Wyckoff, Seamans & Benedict, 198 U.S. 118, 140, 25 S.Ct. 609, 49 L.Ed. 972 (1905). This principle was incorporated into the Lanham Act, which states that a mark that is “primarily merely a surname” is not protectable unless it acquires secondary meaning. 15 U.S.C. § 1052(e)(4), (f) (1994); Abraham Zion Corp. v. Lebow, 761 F.2d 93, 104 (2d Cir.1985); see L.E. Waterman Co. v. Modern Pen Co., 235 U.S. 88, 94, 35 S.Ct. 91, 59 L.Ed. 142 (1914) (pre-Lanham Act case stating that protection from confusion is available to the holder of a surname trademark that has acquired public recognition); Horlick’s Malted Milk Corp. v. Horluck’s, Inc., 59 F.2d 13, 15 (9th Cir.1932) (preLanham Act case limiting the defendant’s right to use his surname as a trademark where the name had acquired public recognition from the efforts of a competitor). Avery Dennison cannot claim that “Avery” and “Dennison” are inherently distinctive, but must demonstrate acquired distinctiveness through secondary meaning. The drafters of the Federal Trademark Dilution Act continued the concern for surnames when adding protection against trademark dilution to the federal scheme. On early consideration of the Act, the report from the Senate Judiciary Committee emphasized: “[T]he committee intended to give special protection to an individual’s ability to use his or her own name in good faith.” S.Rep. No. 100-515, at 43 (1988). The Federal Trademark Dilution Act imports, at a minimum, the threshold secondary-meaning requirement for registration of a surname trademark. Avery Dennison maintains registrations of both “Avery” and “Dennison” on the principal register, prima facie evidence that these marks have achieved the secondary meaning required for protection from infringement and unfair competition. See Americana Trading, 966 F.2d at 1287. We reject Appellants’ argument that the distinctiveness required for famousness under the Federal Trademark Dilution Act is inherent, not merely acquired distinctiveness. See 15 U.S.C. § 1125(c)(1)(A) (referring to “inherent or acquired distinctiveness”). However, because famousness requires a showing greater than mere distinctiveness, the presumptive secondary meaning associated with “Avery” and “Dennison” fails to persuade us that the famousness prong is met in this case. 2 Overlapping Channels" }, { "docid": "17118275", "title": "", "text": "is “primarily merely a surname” within the meaning of the Act, and hence that it is not proper subject matter for registration on the Principal Register in the absence of a showing that it has acquired in this country a secondary meaning of indicating origin in applicant of the goods to which it is applied. See Kimberly-Clark Corporation v. Marzall, Comr., Pats., [90 U.S. App.D.C. 409, 196 F.2d 772] 93 USPQ 191 (CA DC, 1952). In addition to the evidence submitted by appellant as to the meaning of SCHAUB and LORENZ, appellant argues that various city telephone directories do not disclose any listing of SCHAUB-LORENZ. The examiner cites the fact that various city telephone directories disclose listings of SCHAUB and LORENZ individually. Appellant also argues here that the mark has become known and registered in many countries. The solicitor replies that no evidence to this effect was submitted by appellant. Appellant also cited Registration No. 386,174 of March 25, 1941, for LORENZ, now expired, as evidence that the mark here is not primarily merely a surname. The examiner replied that registration under the Trademark Act of 1920 does not support registrability on the Principal Register. Concerning legal precedents, the examiner and the board relied on the decision in Kimberly-Clark, supra, wherein the court affirmed the District Court’s refusal to order registration on the Principal Register of “Kimberly-Clark.” The court in its opinion reasoned that if neither Kimberly or Clark was registrable, as being primarily merely surnames, then a combination of the two could not be registered. Appellant argues this decision is inapplicable here because, unlike Kimberly-Clark, evidence has been submitted showing that each term has meaning other than as a surname and appellant itself does not use the combination as its corporate name. Appellant argues the board failed to apply the correct test in resolving the issue of whether the mark is primarily merely a surname, citing Ex parte Rivera Watch Corp., 106 USPQ 145 (Com’r. Dec. 1955). This opinion states the proper test as being, “What is the primary significance of the mark to the purchasing public ?” The" }, { "docid": "4226784", "title": "", "text": "was not established is clearly erroneous. IV. The trademark examining attorney acted entirely in accordance with the statute, the PTO rules, and precedent of this court in his refusal to register DURANGO for chewing tobacco on the record of this case. For the foregoing reasons, the decision of the Trademark Trial and Appeal Board upholding the rejection under § 2(e)(2) is affirmed. AFFIRMED.' . Section 2(e), codified at 15 U.S.C. § 1052(e), provides in pertinent part: No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it— ****** (e) [cjonsists of a mark which, (1) when applied to the goods of the applicant is merely descriptive or deceptively misdescriptive of them, or (2) when applied to the goods of the applicant is primarily geographically descriptive or deceptively misdescriptive of them, except as indications of regional origin may be registrable under section 4 hereof, or (3) is primarily merely a surname. [Emphasis added.] No issue is raised here with respect to registrability of the subject mark on the Supplemental Register (15 U.S.C. § 1091). . The entry for the state of Durango, Mexico reads, in pertinent part: Agr. highly developed in Nazas R valley and near Durango; grows cotton principally, also wheat, corn, barley, chick-peas, sugar cane, tobacco, alfalfa, wine, fruit. Maguey, candelilla wax, and guayule rubber are produced in more arid sections. [Emphasis added.] Likewise, the entry for the city of Durango, Mexico reads, in pertinent part: Rail junction; resort; commercial, industrial, lumbering, and agr. center (grain, cotton, sugar cane, tobacco, fruit, vegetables, stock). [Emphasis added.] . The entry for Durango reads as follows: 1. state NW cen Mexico area 42,272, pop. 919,381. 2. city, its * pop. 324,261. . 15 U.S.C. § 1052(f): (f) Except as expressly excluded in paragraphs (a), (b), (c), and (d) of this section, nothing herein shall prevent the registration of a mark used by the applicant which has become distinctive of the applicant's goods in commerce. The Commissioner may accept as prima facie" }, { "docid": "17118277", "title": "", "text": "mark Rivera was held not to be primarily merely a surname. The opinion also comments that an opposite conclusion in Kimberly-Clark might have been reached if the above test had been applied. Appellant argues in its brief: In addition to the Ex parte Rivera Watch Corp. case, supra, several subsequent cases held that marks which have different meanings in addition to meaning a surname are registrable. The discussed marks were initially rejected by the Examiner on the ground that the respective marks were primarily merely surnames. In Ex parte Omaha Cold Storage Co., 111 USPQ 189 (Com’r., 1956), the applicant’s mark “Douglas” was held to be registrable and not primarily merely a surname. The Assistant Commissioner noted the various meanings of “Douglas” and how it appeared from the record that “Douglas” was not the surname of any person connected with the applicant. In Ex parte Gemex Co., 111 USPQ 443 (Com’r., 1956), the applicant’s mark “Wellington” was held to be registrable and not primarily merely a surname. The Assistant Commissioner noted the different meanings of the term and followed the rationale set forth in the Rivera case, supra, stating: “ * * * There is no way of knowing what the impact on the purchasing public is likely to be upon seeing ‘WELLINGTON’ watch bracelets and straps, or with what, if anything, purchasers are likely to associate the mark.” “The rationale set forth in Ex parte Rivera Watch Corporation, 106 USPQ 145 (Com’r., 1955), and in Ex parte Omaha Cold Storage Co., 111 USPQ 189 (Com’r., 1956), leads to a conclusion here that ‘WELLINGTON’ is not primarily merely a surname within the meaning of Section 2(e) of the statute when that section is read in the light of its legislative history.”' The sole issue here is whether the mark sought to be registered, SCHAUB-LO-RENZ, was properly refused registration under section 2(e) (3) of the Trademark Act of 1946 as being primarily merely a surname. This provision of the act has been productive of diverse and not easily reconcilable decisions by the Trademark Trial and Appeal Board as well as by" }, { "docid": "23482388", "title": "", "text": "conclusion can extend to Article 16(2) protection of service marks because TRIPs is plainly not a self-executing treaty. See In re Rath, 402 F.3d 1207, 1209 n. 2 (Fed.Cir.2005); see also S.Rep. No. 103-412, at 13 (1994) (accompanying the Uruguay Round Agreements Act, Pub.L. No. 103-465, 108 Stat. 4809 (1994)) (stating that TRIPs and other GATT agreements “are not self-executing and thus their legal effect in the United States is governed by implementing legislation”). While Congress has amended numerous federal statutes to implement specific provisions of the TRIPs agreement, it appears to have enacted no legislation aimed directly at Article 16(2). ITC nevertheless submits that Lanham Act sections 44(b) and (h) effectively incorporate the protections afforded famous marks by the Paris Convention and TRIPs. Appellant’s Br. at 14-16 & n. 2. ITC’s argument is, however, at odds with this court’s 2005 ruling in Empresa Cubana del Tabaco v. Culbro Corporation, 399 F.3d 462. In that case, we expressly held that the Paris Convention creates no substantive United States rights beyond those independently provided in the Lanham Act: “As other courts of appeals have noted, the rights articulated in the Paris Convention do not exceed the rights conferred by the Lanham Act. Instead, we conclude that the Paris Convention, as incorporated by the Lanham Act, only requires ‘national treatment.’ National treatment means that foreign nationals should be given the same treatment in each of the member countries as that country makes available to its own citizens. So, section 44 of the Lanham Act gives foreign nationals the same rights and protections provided to United States citizens by the Lanham Act. Id. at 485 (emphasis added) (quoting International Café, S.A.L. v. Hard Rock Café Int'l Inc., 252 F.3d 1274, 1277-78 (11th Cir.2001) but omitting internal citations); see also Grupo Gigante S.A. De C.V. v. Dallo & Co., 391 F.3d at 1100 (stating that Paris Convention creates no “additional substantive rights” to those provided by Lanham Act). Although this statement was made in the context of a claim asserting substantive rights under Article lObis of the Paris Convention, the reasoning applies with equal" }, { "docid": "17118276", "title": "", "text": "surname. The examiner replied that registration under the Trademark Act of 1920 does not support registrability on the Principal Register. Concerning legal precedents, the examiner and the board relied on the decision in Kimberly-Clark, supra, wherein the court affirmed the District Court’s refusal to order registration on the Principal Register of “Kimberly-Clark.” The court in its opinion reasoned that if neither Kimberly or Clark was registrable, as being primarily merely surnames, then a combination of the two could not be registered. Appellant argues this decision is inapplicable here because, unlike Kimberly-Clark, evidence has been submitted showing that each term has meaning other than as a surname and appellant itself does not use the combination as its corporate name. Appellant argues the board failed to apply the correct test in resolving the issue of whether the mark is primarily merely a surname, citing Ex parte Rivera Watch Corp., 106 USPQ 145 (Com’r. Dec. 1955). This opinion states the proper test as being, “What is the primary significance of the mark to the purchasing public ?” The mark Rivera was held not to be primarily merely a surname. The opinion also comments that an opposite conclusion in Kimberly-Clark might have been reached if the above test had been applied. Appellant argues in its brief: In addition to the Ex parte Rivera Watch Corp. case, supra, several subsequent cases held that marks which have different meanings in addition to meaning a surname are registrable. The discussed marks were initially rejected by the Examiner on the ground that the respective marks were primarily merely surnames. In Ex parte Omaha Cold Storage Co., 111 USPQ 189 (Com’r., 1956), the applicant’s mark “Douglas” was held to be registrable and not primarily merely a surname. The Assistant Commissioner noted the various meanings of “Douglas” and how it appeared from the record that “Douglas” was not the surname of any person connected with the applicant. In Ex parte Gemex Co., 111 USPQ 443 (Com’r., 1956), the applicant’s mark “Wellington” was held to be registrable and not primarily merely a surname. The Assistant Commissioner noted the different meanings of" }, { "docid": "17118281", "title": "", "text": "view that as neither “SCHAUB” or “LORENZ” would be likely to have any meaning other than as surnames, the combination SCHAUB-LORENZ was similarly defective. Apparently the board did not consider appellant’s evidence to be persuasive. We think the board’s initial error arose from dissecting the marks. A mark must be considered in its entirety. In Ada Milling Co., 40 CCPA 1076, 205 F.2d 315, this court had occasion to consider the mark “Startgrolay” for poultry feed. Registration was refused on the ground it was a combination of generically descriptive terms, starting, growing and laying. The court reversed the decision of the Patent Office on the ground that the mark, when viewed in its entirety, was capable of distinguishing the applicant’s goods from those of others. The dissecting method employed in Kimberly-Clark and in In re Midy Laboratories, Inc., 26 CCPA 1294, 104 F.2d 617, was properly rejected by the majority. Section 2 states no trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the Principal Register on account of its nature unless it — consists of a mark which is “primarily merely a surname.” It is clear that the burden is on the Patent Office to prove that the trademark is primarily merely a surname. In Ex parte Gemex Co., 111 USPQ 443, relied on by appellant, Assistant Commissioner Leeds stated: The Examiner of Trademarks expressed the opinion that the primary significance [see Ex parte Rivera, supra] of the mark [Wellington] presented is a surname significance, but he gave no rationale other than to cite its appearance in some telephone directories. * * * While there may be no hard and fast rule as to the amount of evidence necessary to demonstrate that a mark is or is not primarily merely a surname, we note here that the examiner cited only portions of the mark as being listed in telephone directories, relying on dissection of the mark which we find is error. No evidence was submitted that the mark sought to be registered was primarily merely a surname." }, { "docid": "9716803", "title": "", "text": "registration under Section 1052(f). Growth in sales was the principal factor upon which appellant relied to show distinctiveness. But, as the Board observed (App. 9), this may indicate the popularity of the product itself rather than recognition of the mark “BABY BRIE” as indicative of origin; or it may indicate acceptance of Bongrain’s other mark “Al-ouette”, which was used along with “BABY BRIE” on the packages (App. 23). The possible existence of secondary meaning is a question of fact, and it is not possible for us to find the Board’s determination to be clearly erroneous. Yamaha Int’l Corp. v. Hoshino Gakki Co., 840 F.2d 1572, 1581 (Fed.Cir.1988). Accordingly, the decision of the Board is AFFIRMED. . This Court has jurisdiction under 28 U.S.C. § 1295(a)(4)(B) and 15 U.S.C. § 1071(a)(1). . The original application, Serial No. 76/576,009, was filed on January 1, 1986, claiming use since September 7, 1983, and describing the product as Brie cheese. . Section 1052 provides, in pertinent part: No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it— ****** (e) Consists of a mark which, (1) when applied to the goods of the applicant is merely descriptive or deceptively misdescriptive of them, or (2) when applied to the goods of the applicant is primarily geographically descriptive or deceptively misdescriptive of them, except as indications of regional origin may be registrable under section 1054 of this title, or (3) is primarily merely a surname. (f) ... [NJothing ... shall prevent the registration of a mark used by the applicant which has become distinctive of the applicant’s goods in commerce. . If a mark is generic, incapable of serving as a means \"by which the goods of the applicant may be distinguished from the goods of others” but merely identifies a category of goods (including those of others as well as the applicant’s) it is not a trademark and can not be registered under the Lanham Act. In re Gould Paper Co., 834 F.2d 1017," }, { "docid": "14292893", "title": "", "text": "circumstances, the statutory policy against immediate registration on the Principal Register appropriately should be applied. Appellant has attempted to convince us that this case is the same as In re Kahan & Weisz, 508 F.2d at 832-33, 184 USPQ at 421-22, in which DUCHARME for watches was held not to be primarily merely a surname. However, in that case it is apparent that the PTO initially refused registration without any evidence that DUCHARME was a surname. As indicated therein, the PTO sought to buttress its position by resort to the applicant’s submissions. Not only was the refusal to register without the examiner having made a prima facie case improper, but also, as one might expect, the applicant’s evidence was insufficient to establish a case for the PTO. In any event, it must also be noted that, with respect to issues of fact, no precedential value can be given to the quantum of evidence apparently accepted in a prior case. The quantum of evidence which was persuasive against finding surname significance in one case may be insufficient in another because of differences in the names themselves. We do not know how DUCHARME was displayed, but we can see that it was likely to be taken as a fanciful mark for watches derived from the apt word “charm.” Here there is no rela tionship between the word “dart” and repair, maintenance, and distributorship services, which would lead one to think of that word from the use of DARTY as the mark for such services. We conclude that in view of the uncontrovertable evidence of surname usage of record, and the unpersuasiveness of appellant’s argument that DARTY would be understood as a play on the word “dart,” the board’s finding that DARTY is primarily merely a surname is not clearly erroneous. Stock Pot Restaurant, Inc. v. Stockpot, Inc., 737 F.2d 1576, 1578-79, 222 USPQ 665, 666-67 (Fed.Cir.1984) (factual findings of TTAB reviewed under the “clearly erroneous” standard). Nor can we accept appellant’s further argument that, because the application is based on foreign priority, proof of distinctiveness cannot be required. Section 44(d)(2) merely excuses" }, { "docid": "17118273", "title": "", "text": "SMITH, Judge. Appellant appeals from the decision of the Trademark Trial and Appeal Board affirming the examiner’s refusal to register the mark “SCHAUB-LORENZ” on the Principal Register, 145 USPQ 163. Appellant, organized under the laws of the Federal Republic of Germany, alleged in its application prior registration of the mark in the Federal Republic of Germany. Registration is sought here under section 44(e), Trademark Act of 1946 (15 U.S.C. § 1126(e)), which provides, in part: A mark duly registered in the country of origin of the foreign applicant may be registered on the principal register if eligible, otherwise on the supplemental register herein provided. * * * The board in its opinion set forth the position of the examiner and its reasoning as follows: * * * This application is based upon applicant’s ownership of a German registration rather than upon use of the mark in this country. The Examiner of Trademarks has refused registration on the ground that applicant’s mark is “merely a combination of two surnames and as such falls under the prohibition of Section 2(e) (3) of the Trademark Act of 1946”. Section 2 of the Trademark Act of 1946 [15 USC 1052] provides that: “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it * * * (e) Consists of a mark which * * * (3) is primarily merely a surname”. In defense of its right of registration, applicant points out that the surname “SCHAUB” also means in the German language “a bundle of straw, sheaf”, and that the surname “LORENZ” is also the name of a city in West Virginia and of a city in Brazil, in consequence of which, applicant strenuously argues that its mark cannot properly be considered as primarily merely a surname. We are firmly of the opinion that, to the average member of the purchasing public, neither “SCHAUB” nor “LORENZ” would be likely to have any meaning other than as surnames. It is concluded, therefore, that applicant’s mark" }, { "docid": "1707434", "title": "", "text": "BALDWIN, Judge. • This appeal is from the decision of the Trademark Trial and Appeal Board affirming the examiner’s refusal to register the mark DUCHARME as a trademark for watches on the Principar Register. We reverse. The examiner refused registration under the Lanham Act, section 2(e)(3) (15 U.S.C. § 1052(e)(3)) on the ground that DUCHARME is primarily merely a surname. The board affirmed the refusal to register while adding, “[mjoreover, ‘DUCHARME’ is admittedly a surname and while it may well be, as applicant in substance contends, a rare surname, Section 2(e)(3) of the Statute makes no distinction between rare or commonplace surnames.” Further, the board quoted from the examiner’s answer: The name Ducharme is listed in var-' ious telephone directories as a surname just as applicant has disclosed in its amendment on June 16, 1971. Opinion The sole issue here is whether the mark sought to be registered, DU-CHARME, was properly refused registration under section 2(e)(3) of the Lanham Act as being primarily merely a surname. Section 2 in pertinent part reads: No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it— ****** (e) Consists of a mark which . (3) is primarily merely a surname. [Emphasis added.] It is clear that the burden is on the Patent Office to prove that the trademark is primarily merely a surname. In re Standard Elektrik Lorenz Aktiengesellschaft, 371 F.2d 870, 873, 54 CCPA 1043, 1047 (1967). This court has recognized that section 2(e)(3) is difficult to apply in determining whether a mark is primarily merely a surname. However, we are of the opinion that a correct resolution of the issue can be made only after the primary significance of the mark to the purchasing public is determined, as suggested by Ex parte Rivera Watch Corp., 106 USPQ 145, 149 (Com’r Pat.1955). We thus adopt the reasoning expounded in Rivera in which it is stated: A trademark is a trademark only if it is used in trade. When it is used" }, { "docid": "17118280", "title": "", "text": "of Appeals to express its opinion as to the import of section 2(e) (3) of the Trademark Act of 1946. The second ease involved the registra-bility of the mark “Kimberly-Clark” on the Principal Register under the 1946 Act. The Commissioner had offered registration on the Supplemental Register. The refusal to register the mark was made under section 2(e) (3) as a mark which was primarily merely a surname. The Court of Appeals affirmed “[f]or the reasons given in our discussion” of the first case, 196 F.2d at 775. It is not clear why the Court of Appeals in Kimberly-Clark refused registration on the Principal Register when, according to the court’s opinion, “secondary significance” had been shown, 196 F.2d at 774. See section 2(f) of the Trademark Act of 1946 (15 U.S.C. § 1052(f)). As the board here commented, if appellant had shown “secondary meaning,” section 2(f), then section 2(e) (3) expressly presents no bar to registration on the Principal Register. As to this aspect we agree with the board. Nonetheless the board was of the view that as neither “SCHAUB” or “LORENZ” would be likely to have any meaning other than as surnames, the combination SCHAUB-LORENZ was similarly defective. Apparently the board did not consider appellant’s evidence to be persuasive. We think the board’s initial error arose from dissecting the marks. A mark must be considered in its entirety. In Ada Milling Co., 40 CCPA 1076, 205 F.2d 315, this court had occasion to consider the mark “Startgrolay” for poultry feed. Registration was refused on the ground it was a combination of generically descriptive terms, starting, growing and laying. The court reversed the decision of the Patent Office on the ground that the mark, when viewed in its entirety, was capable of distinguishing the applicant’s goods from those of others. The dissecting method employed in Kimberly-Clark and in In re Midy Laboratories, Inc., 26 CCPA 1294, 104 F.2d 617, was properly rejected by the majority. Section 2 states no trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on" }, { "docid": "23482387", "title": "", "text": "6bis provides for member states to the Paris Convention, upon the request of an interested party, to prohibit the use of a trademark which constitutes a reproduction, an imitation, or a translation, liable to create confusion, of a mark considered by the competent authority of the country of registration or use to be well known in that country as being already the mark of a person entitled to the benefits of this Convention and used for identical or similar goods. Paris Convention, art. (¡bis. Further, TRIPs Article 16(2) extends Article 6bis to service marks, see supra at 156 n. 15. At the outset, we observe that ITC does not specifically contend that these two treaty articles are self-executing. While Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633 (2d Cir.1956), might support such an argument with respect to Article 6bis protection of trademarks, see id. at 640 (observing in dictum that, upon ratification by Congress, the Paris Convention required “no special legislation in the United States ... to make [it] effective here”), no similar conclusion can extend to Article 16(2) protection of service marks because TRIPs is plainly not a self-executing treaty. See In re Rath, 402 F.3d 1207, 1209 n. 2 (Fed.Cir.2005); see also S.Rep. No. 103-412, at 13 (1994) (accompanying the Uruguay Round Agreements Act, Pub.L. No. 103-465, 108 Stat. 4809 (1994)) (stating that TRIPs and other GATT agreements “are not self-executing and thus their legal effect in the United States is governed by implementing legislation”). While Congress has amended numerous federal statutes to implement specific provisions of the TRIPs agreement, it appears to have enacted no legislation aimed directly at Article 16(2). ITC nevertheless submits that Lanham Act sections 44(b) and (h) effectively incorporate the protections afforded famous marks by the Paris Convention and TRIPs. Appellant’s Br. at 14-16 & n. 2. ITC’s argument is, however, at odds with this court’s 2005 ruling in Empresa Cubana del Tabaco v. Culbro Corporation, 399 F.3d 462. In that case, we expressly held that the Paris Convention creates no substantive United States rights beyond those independently provided in the" }, { "docid": "8352618", "title": "", "text": "Worlev, Judge, delivered tlie opinion of the court: This is an appeal from the decision of the Commissioner of Patents affirming the rejection by the examiner of the application for registration filed-December 5, 1947, under the provisions of section 2 (e) of the Lanhám Act (Trade-Mark Act of 1946), of the notation “S. Seidenberg & Co’s.” Registration was denied on the ground that the mark sought to be registered was primarily merely a surname within the meaning of the involved section. The pertinent portions of that section read as follows: Sec. 2. Trade-marks registrable on the Principal Register: No trade-marks by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it — * * » (e) Consists of a mark which, * * '* (3) is primarily merely a surname. [60 Stat. 428, 15 U. S. C., sec. 1052.] The record refle'cts that the mark has-been used continuously by the applicant and its predecessors since prior to 1899; that it was originally registered under the Trade-Mark Act of 1905, as amended, on June 12, 1934 (T. M. 313,810); and that it was republished under the provisions of the Lanham Act, supra, January 18, 1949. The mark, which appears to be printed in Old English or a modified Black Let ter type, is applied to applicant’s cigars by being printed on wrappers enclosing the cigars and also on labels pasted on the cigar boxes. The examiner refused registration on the ground that the .word “Seidenberg” constituted the dominant and significant feature of the mark and relied on the decision in the case of Ex parte Sears, Roebuck, & Co., 87 USPQ 400 (affirmed March 12, 1953, — U. S. App. D. C. — , 96 USPQ 360). Upon appeal to the commissioner, the appellant renewed its contention that the involved mark could not be classified as being primarily merely a surname because the additions of the single initial and the terminal portion “& Go’s.” together with the distinctive fashion in which they" } ]

[ { "docid": "23180145", "title": "", "text": "Justice Act of 1963: Hearings on S.63 and S.1057 Before the Senate Comm, on the Judiciary, 88th Cong., 1st Sess. 173 (1963). Such considerations are not relevant to proceedings concerning the appointment or termination of counsel. But since Congress obviously knew how to provide for an ex parte proceeding when it seemed appropriate, the failure to do so in the context of appointment of counsel seems significant. Moreover, our legal system is rooted in the idea that facts are best determined in adversary proceedings; secret, ex parte hearings “are manifestly conceptually incompatible with our system of criminal jurisprudence,” United States v. Arroyo-Angulo, 580 F.2d 1137, 1141 (2d Cir.), cert. denied, 439 U.S. 913, 99 S.Ct. 285, 58 L.Ed.2d 260 (1978) (citations omitted). There are numerous situations where a defendant must face the “unappealing choice,” as Judge Leval noted, of testifying in open court or losing a constitutional claim. See, e.g., United States v. Salvucci, 448 U.S. 83, 89-95, 100 S.Ct. 2547, 2551-54, 65 L.Ed.2d 619 (1980) (fourth amendment standing); McGautha v. California, 402 U.S. 183, 213-17, 91 S.Ct. 1454, 1470-72, 28 L.Ed.2d 711 (1971) (fourteenth amendment right to be heard on issue of punishment). However, “intolerable tension[s]” between constitutional rights have been alleviated by applying the rule that a defendant’s testimony at a pretrial hearing will not be admissible at trial on the issue of guilt unless he fails to object. See Simmons v. United States, supra, 390 U.S. at 394, 88 S.Ct. at 976; see also Note, Resolving Tensions Between Constitutional Rights: Use Immunity in Concurrent or Related Proceedings, 76 Colum.L.Rev. 674, 678-81 (1976). We have held that “the government should not be permitted to use as part of its direct case any testimony given by a defendant at a hearing where he is seeking form a pauperis relief or the assignment of counsel on the ground of his financial inability to ... afford counsel,” United States v. Branker, 418 F.2d 378, 380 (2d Cir.1969), and that holding is directly applicable to the case before us. See United States v. Peister, supra, 631 F.2d at 662; cf. United States" } ]

[ { "docid": "9930329", "title": "", "text": "a fruit of the search. The District Judge denied the motion without stating any reasons. The Nadlers did not request findings or any clarification. The fact that the Government did not specifically raise the expectation of privacy issue during the course of the hearing on the motions to suppress is of no consequence. It was the Nadlers who had “the burden of proving not only that the search ... was illegal, but also that [they] had a legitimate expectation of privacy in [the area searched].” Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). See also Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 424 n. 1, 58 L.Ed.2d 387 (1978); Simmons v. United States, 390 U.S. 377, 389-90, 88 S.Ct. 967, 973, 19 L.Ed.2d 1247 (1968). The supplemental briefings by the Nadlers rely on the evidentiary record made before the District Court to support their claim that they had a legitimate expectation of privacy which was invaded by the search. They make no offer of proof of additional evidence to augment the record on this issue. “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). Only defendants whose personal Fourth Amendment rights have been violated may benefit from the exclusionary rule’s protections. Rakas v. Illinois, 439 U.S. at 134, 99 S.Ct. at 425. To establish that his Fourth Amendment rights have been violated by an unlawful search, a defendant must show that he had a legitimate “expectation of privacy in the area searched.” United States v. Salvucci, 448 U.S. 83, 93, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980) (emphasis added). The inquiry focuses on the place searched, and while the defendant’s possessory interests in either the premises or the seized goods are relevant, they are not dispositive. -The Supreme Court has “emphatically rejected the notion that ‘arcane’ concepts of property law ought to control the ability to claim the protections of the Fourth Amendment.”" }, { "docid": "23158176", "title": "", "text": "part of its direct case against a defendant at trial because a defendant must be able to assert the right to counsel without risking self incrimination. The record does not show that Marcel objected to this evidence before the district court. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court held that a defendant’s testimony at a suppression hearing to establish standing to object to a search cannot be used against him at trial to establish guilt because otherwise, the defendant would be required to choose between the Fourth Amendment right to be free from unreasonable searches and the Fifth Amendment right against self incrimination. The Court has limited Simmons in some respects, see McGautha v. California, 402 U.S. 183, 211, 212, 91 S.Ct. 1454, 1469, 1469-70, 28 L.Ed.2d 711, (1971), but has not ruled on whether statements made by a defendant to establish eligibility for appointed counsel are admissible at trial as proof of guilt. See United States v. Kahan, 415 U.S. 239, 242-43, 94 S.Ct. 1179, 1180-81, 39 L.Ed.2d 297 (1974). Several circuits have followed the reasoning of Simmons and held that a defendant is entitled to some sort of protection against the use of financial disclosures made to establish eligibility for appointed counsel. In the absence of some protection, a defendant would be forced to choose between the Sixth Amendment right to counsel and the Fifth Amendment right against self incrimination. See United States v. Hitchcock, 992 F.2d 236, 239 (9th Cir.1993); United States v. Pavelko, 992 F.2d 32, 34-35 (3d Cir.), cert. denied — U.S. --, 114 S.Ct. 272, 126 L.Ed.2d 223 (1993); United States v. Gravatt, 868 F.2d 585, 589-92 (3d Cir.1989); United States v. Sarsoun, 834 F.2d 1358, 1363-64 (7th Cir. 1987); United States v. Harris, 707 F.2d 653, 662-63 (2d Cir.), cert. denied 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 688 (1983). Some courts have held that this protection may be offered before trial, either by granting the defendant use immunity or by conducting the indigence hearing in camera and sealing the record." }, { "docid": "21559384", "title": "", "text": "disclose the required financial information to the trial court for it to review in camera, ... [following which] the financial data should be sealed and not made available for the purpose of tax prosecution.” 567 F.2d at 840; see also Ellsworth, supra, 547 F.2d at 1098. Second, if the trial court deems an adversary hearing on defendant’s request for appointment of counsel to be appropriate, the court may grant use immunity to the defendant’s testimony at that hearing. See Branker, supra, 418 F.2d at 380; Simmons v. United States, 390 U.S. 377, 389-94, 88 S.Ct. 967, 973-76, 19 L.Ed.2d 1247 (1968)(Defendant’s testimony at a pretrial suppression hearing may be excluded at trial) . Because selection of methods may involve consideration of a variety of factors best known to the district court, we will commit the choice to the sound discretion of that court. Whichever method is chosen, the defendant may be required to provide the necessary financial information under penalty of perjury. See Sarsoun, supra, 834 F.2d at 1363. Further, as was done by this court on this appeal, the appointment of counsel may be conditioned on the appellant’s obligation to repay the government for his defense costs, should it later develop that he is financially able to do so. 18 U.S.C. § 3006A(c); Martin-Trigona, supra, 684 F.2d at 492, n. 9; United States v. Allen, 596 F.2d 227, 232 (7th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 149, 62 L.Ed.2d 97 (1979). IV. Under the circumstances of this case, the lower court’s failure to conduct an appropriate inquiry before denying appellant’s request for appointed counsel requires reversal of Gravatt’s conviction. Recognizing that a fair trial in our adversary system of criminal justice cannot be assured if the defendant is unrepresented, Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 63-64, 77 L.Ed. 158 (1932), the Supreme Court has held that the denial of the right to counsel is per se prejudicial, Flanagan v. United States, 465 U.S. 259, 268, 104 S.Ct. 1051," }, { "docid": "23286262", "title": "", "text": "93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). As held by the Supreme Court in Alderman: There is no necessity to exclude evidence against one defendant in order to protect the rights of another. No rights of the victim of an illegal search are at stake when the evidence is offered against some other party. The victim can and very probably will object for himself when and if it becomes important for him to do so. 394 U.S. at 174, 89 S.Ct. at 967. As noted below, defendant Wall, owner of the premises from which the materials were seized, does challenge the possible violation of his own rights. In order to have standing to assert the claim discussed herein, defendant must demonstrate a legitimate expectation of privacy in the premises searched and the items seized. United States v. Salvucci, 448 U.S. 83, 91-92, 100 S.Ct. 2547, 2552-53, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 133-4, 99 S.Ct. 421, 424-5, 58 L.Ed.2d 387 (1978); Alderman v. United States, 394 U.S. at 171-2, 89 S.Ct. at 965; United States v. Riquelmy, 572 F.2d 947, 950-1 (2d Cir.1978). Defendant Gumpricht conceded that the narcotics records seized were not in his apartment, but in that occupied by Daniel Wall; he does not contend that he had any legitimate expectation of privacy in the Wall apartment. This defendant has also failed to demonstrate, or even assert, that he had either a property or a possessory interest in the property seized. Therefore, Defendant Gumpricht clearly has no standing to challenge the constitutionality of the search and seizure. See, e.g., United States v. Salvucci, 448 U.S. at 86-87, 100 S.Ct. at 2550; United States v. Pinto-Mejia, 720 F.2d 248, 255 (2d Cir.1983), reh. denied 728 F.2d 142 (2d Cir.1984); United States v. Streifel, 665 F.2d 414, 419 n. 6 (2d Cir.1981), cert. denied sub nom. Pauth-Arzuza v. United States, 459 U.S. 1114, 103 S.Ct. 748, 74 L.Ed.2d 967 (1983). In denying this motion of Defendant Gumpricht, the Court notes that" }, { "docid": "19375334", "title": "", "text": "v. Sal-vucci, 448 U.S. 83, 91-92, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980); Rakas, 439 U.S. at 143, 99 S.Ct. at 430; see also Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967). It is therefore necessary to determine whether Brown had a legitimate expectation of privacy in Manikowski’s person in order to answer whether he may seek to exclude the evidence seized from Manikowski. The Supreme Court has characterized that issue as one of fact. Rawlings, 448 U.S. at 104-06, 100 S.Ct. at 2561-62; Salvucci, 448 U.S. at 92, 95, 100 S.Ct. at 2553, 2554. Because the district court below made no findings on this issue, ordinarily the proper course would be to remand. Cf. Salvucci, 448 U.S. at 95, 100 S.Ct. at 2554. We believe the circumstances of this case and the nature of the crime charged make it unnecessary to remand the case for further findings, however. At one time the Supreme Court held that a defendant charged with a possessory crime “automatically” could challenge the seizure of the object he was accused of possessing, on the grounds that otherwise defendants would be faced with the choice of claiming possession as a foundation for their suppression motions and risking use of that testimony at trial should their motions fail, or forgoing their fourth amendment challenges; and that the government would be placed in the position of arguing inconsistently that the defendant did not have possession for suppression purposes but did have possession for substantive purposes. Jones, 362 U.S. at 261-64, 80 S.Ct. at 731-34. Although the Court has since repudiated the “automatic standing” rule (because a defendant’s testimony in support of a motion to suppress cannot be used as substantive evidence at trial, see Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247 (1968), and because “possession” for substantive criminal law purposes is not necessarily a proxy for the kind of interest shielded from search or seizure by the fourth amendment), see Salvucci, 448 U.S. 89-91, 100 S.Ct. 2551-2552, it has held that" }, { "docid": "23158178", "title": "", "text": "See Gravatt, 868 F.2d at 590. In United States v. Peister, 631 F.2d 658, 661-62 (10th Cir.1980), cert. denied 449 U.S. 1126, 101 S.Ct. 945, 67 L.Ed.2d 113 (1981), this circuit rejected the pretrial protection approach without resolving whether use of a defendant’s financial affidavit and other statements made to obtain appointed counsel violates the Fifth Amendment. In Peister, the defendant, fearing self incrimination, refused to fill out a financial affidavit unless the court granted him immunity. The court rejected the defendant’s argument that this violated his right to counsel, concluding that any conflict between the defendant’s Fifth and Sixth Amendment rights was speculative until and unless the government attempted to use the information at trial. The court was unwilling to assume the government would attempt to use the information at trial or that the trial court would allow it. See also Sarsoun, 834 F.2d at 1364; Harris, 707 F.2d at 662-63. Here, the conflict between Fifth and Sixth Amendment rights is not speculative. The government used Marcel’s financial affidavit and other statements he made to establish eligibility for appointed counsel to prove guilt at trial. We conclude that use of those statements at trial violated Marcel’s Fifth Amendment right against self incrimination. See Pavelko, 992 F.2d at 34-35. Although neither the Supreme Court nor this court has decided the issue, given the weight of authority from other circuits, we conclude that the error was sufficiently clear and obvious to be plain error as defined in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The error was also sufficiently prejudicial to constitute plain error. See Olano, 507 U.S. at 732-37, 113 S.Ct. at 1777-79. Marcel’s statements about his financial condition had little relevance to the conspiracy charge, and could not have affected the verdict on that charge. However, the evidence of Marcel’s lack of legitimate income was important evidence to support the money laundering charge. The prosecutor referred to it in closing argument, pointing out the Hardwells had no significant income but had approximately $10,000 in cash between them at the motel on August" }, { "docid": "926359", "title": "", "text": "Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection. Id. at 394, 88 S.Ct. at 976. In United States v. Salvucci, - U.S. -, -, 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1980), the court referred to, with approval, the “use immunity” granted by Simmons. The Supreme Court has not yet decided whether this principle should be applied to Sixth Amendment claims for counsel, see United States v. Kahan, 415 U.S. 239, 243, 94 S.Ct. 1179, 1181, 39 L.Ed.2d 297 (1974), but several circuit courts have so applied it. See United States v. Anderson, 567 F.2d 839 (8th Cir. 1977); United States v. Ellsworth, 547 F.2d 1096 (9th Cir.), cert. denied, 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 247 (1977); United States v. Branker, 418 F.2d 378 (2d Cir. 1969). Peister’s claim of Fifth Amendment protection against self-incrimination is based on the assumption that execution of the financial disclosure form would incriminate him. On the record presented, we do not know whether it would or not. We know neither the financial ability of the defendant nor what use, if any, might ever be made by the government of defendant’s statements with regard to financial ability. The burden is on the defendant to demonstrate financial inability in order to obtain counsel. United States v. Ellsworth, 547 F.2d 1096 (9th Cir.), cert. denied, 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 247 (1977). We hold defendant should not be relieved of this burden when any conflict with the Fifth Amendment right is speculative and prospective only. The time for protection will come when, if ever, the government attempts to use the information against the defendant at trial. We are not willing to assume that the government will make such use, or if it does, that a court will allow it to do so. II Peister claims it was error for the prosecutor to cross-examine him on the identity of the other members of his church. Because Peister claimed First Amendment protection from answering, it is argued the" }, { "docid": "12684028", "title": "", "text": "406 U.S. 472, 478, 92 S.Ct. 1670, 1675, 32 L.Ed.2d 234 (1972). Thus, the present case is analogous to United States v. Peister, 631 F.2d 658 (10th Cir.1980), cert. denied, 449 U.S. 1126, 101 S.Ct. 945, 67 L.Ed.2d 113 (1981), where the appellant, who proceeded pro se at trial and was convicted of Internal Revenue Code violations, claimed that completion of a financial disclosure form, for the purpose of obtaining appointed counsel, would have violated Ms privilege against self-incrimination. Noting the absence in the record of any evidence that the required disclosure would in fact have jeopardized his Fifth Amendment privilege, we rejected Ms claim: We hold defendant should not be relieved of tMs burden when any conflict with the Fifth Amendment right is speculative and prospective oMy. The time for protection will come when, if ever, the government attempts to use the information against the defendant at trial. We are not willing to assume that the government will make such use, or if it does, that a court will allow it to do so. Id. at 662; see United States v. Schmidt, 816 F.2d 1477, 1481 & n. 3 (10th Cir.1987); accord Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 705, 19 L.Ed.2d 889 (1968) (incrimination resulting from a compelled statement must be “substantial and ‘real,’ not merely trifling or imaginary, hazards of incrimination”). As in Peister, at tMs point in the proceedings, we simply have no way of knowing whether the statements have been, or will be, used in a constitutionally proscribed manner. If an officer, whose compelled statement has been considered by the grand jury, ultimately is indicted, that officer will be able to challenge the indictment and the government will be required to prove that its evidence derives entirely from legitimate sources or that the grand jury’s exposure to the officer’s statement was harmless. Kastigar, 406 U.S. at 460, 92 S.Ct. at 1664-65; Beery, 678 F.2d at 863; see United States v. Pino, 708 F.2d 523, 531 (10th Cir.1983). Moreover, it is significant to note the procedural protections the government has in place." }, { "docid": "23158177", "title": "", "text": "S.Ct. 1179, 1180-81, 39 L.Ed.2d 297 (1974). Several circuits have followed the reasoning of Simmons and held that a defendant is entitled to some sort of protection against the use of financial disclosures made to establish eligibility for appointed counsel. In the absence of some protection, a defendant would be forced to choose between the Sixth Amendment right to counsel and the Fifth Amendment right against self incrimination. See United States v. Hitchcock, 992 F.2d 236, 239 (9th Cir.1993); United States v. Pavelko, 992 F.2d 32, 34-35 (3d Cir.), cert. denied — U.S. --, 114 S.Ct. 272, 126 L.Ed.2d 223 (1993); United States v. Gravatt, 868 F.2d 585, 589-92 (3d Cir.1989); United States v. Sarsoun, 834 F.2d 1358, 1363-64 (7th Cir. 1987); United States v. Harris, 707 F.2d 653, 662-63 (2d Cir.), cert. denied 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 688 (1983). Some courts have held that this protection may be offered before trial, either by granting the defendant use immunity or by conducting the indigence hearing in camera and sealing the record. See Gravatt, 868 F.2d at 590. In United States v. Peister, 631 F.2d 658, 661-62 (10th Cir.1980), cert. denied 449 U.S. 1126, 101 S.Ct. 945, 67 L.Ed.2d 113 (1981), this circuit rejected the pretrial protection approach without resolving whether use of a defendant’s financial affidavit and other statements made to obtain appointed counsel violates the Fifth Amendment. In Peister, the defendant, fearing self incrimination, refused to fill out a financial affidavit unless the court granted him immunity. The court rejected the defendant’s argument that this violated his right to counsel, concluding that any conflict between the defendant’s Fifth and Sixth Amendment rights was speculative until and unless the government attempted to use the information at trial. The court was unwilling to assume the government would attempt to use the information at trial or that the trial court would allow it. See also Sarsoun, 834 F.2d at 1364; Harris, 707 F.2d at 662-63. Here, the conflict between Fifth and Sixth Amendment rights is not speculative. The government used Marcel’s financial affidavit and other statements he made" }, { "docid": "18123045", "title": "", "text": "of openness.” Press-Enterprise I, 464 U.S. at 523, 104 S.Ct. 819 (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982)). As such, this Court may not order Kodzis’ financial information filed under seal unless it makes a specific determination that Kodzis’ financial disclosure would present a “substantial hazard[] of self-incrimination that [is] ‘real and appreciable’ and not merely ‘imaginary and unsubstantial.’ ” Seattle Times v. United States District Court, 845 F.2d 1513, 1518 (9th Cir.1988) (quoting United States v. Neff, 615 F.2d 1235, 1239 (9th Cir.1980)); see also United States v. Hyde, 208 F.Supp.2d 1052, 1054 (N.D.Cal.2002). Kodzis argues he is entitled to have his financial affidavit filed ex parte and under seal because it is unclear the extent to which any statements contained in that affidavit could be used against him in subsequent proceedings. As Kodzis correctly points out, the extent to which Fifth Amendment protection should be afforded to statements made by a defendant in sup port of a request for appointment of counsel is not well-settled. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967 (1968), the Supreme Court held that statements made by a defendant in a suppression hearing, in order to preserve his rights under the Fourth Amendment, could not later be used against him in a trial on the merits of the case because this would create an “ ‘intolerable’ need to surrender one constitutional right in order to assert another.” Simmons, 390 U.S. at 394, 88 S.Ct. 967. Several years later, in United States v. Kahan, the Court declined to expressly extend the Simmons principle to statements made by a defendant in support of an application for appointment of counsel. Kahan, 415 U.S. at 243, 94 S.Ct. 1179. Instead, the Supreme Court held that it was permissible for the prosecution to use the pretrial statements during trial not for purposes of showing that the statements themselves were incriminating, but to show a consciousness of guilt. The Ninth Circuit has twice, since Kahan, declined to grant interlocutory appeal or mandamus relief with regard" }, { "docid": "926358", "title": "", "text": "not find a lawyer compatible with his views who would represent him for a charge he was willing to pay. There is no absolute right to counsel of one’s choice. See United States v. Weninger, 624 F.2d 163 (10th Cir. 1980). Nevertheless, for purposes of this case we assume that Peister desired appointed counsel because he could not afford any lawyer. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967,19 L.Ed.2d 1247 (1968), the Supreme Court held that testimony given by a criminal defendant in support of a motion to suppress cannot be used against that defendant at trial; otherwise defendant would be obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection. Id. at 394, 88 S.Ct. at 976. In United States v. Salvucci, - U.S. -, -, 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1980), the court referred to, with approval, the “use immunity” granted by Simmons. The Supreme Court has not yet decided whether this principle should be applied to Sixth Amendment claims for counsel, see United States v. Kahan, 415 U.S. 239, 243, 94 S.Ct. 1179, 1181, 39 L.Ed.2d 297 (1974), but several circuit courts have so applied it. See United States v. Anderson, 567 F.2d 839 (8th Cir. 1977); United States v. Ellsworth, 547 F.2d 1096 (9th Cir.), cert. denied, 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 247 (1977); United States v. Branker, 418 F.2d 378 (2d Cir. 1969). Peister’s claim of Fifth Amendment protection against self-incrimination is based on the assumption that execution of the financial disclosure form would incriminate him. On the record presented, we do not" }, { "docid": "13647542", "title": "", "text": "assert an expectation of privacy in the contents of the box. We appreciate that Rivera Ortiz may have feared that any interest he claimed in the box at the suppression hearing would be used against him at trial, but it has been well settled for over twenty years that testimony given to meet standing requirements cannot be used as direct evidence against the defendant at trial on the question of guilt or innocence. See Simmons v. United States, 390 U.S. 377, 390, 88 S.Ct. 967, 974, 19 L.Ed.2d 1247 (1968); see also United States v. Salvucci, 448 U.S. 83, 93-94 & n.9, 100 S.Ct. 2547, 2553-54 & n. 9, 65 L.Ed.2d 619 (1980) (leaving open the possibility that suppression testimony can be used for impeachment purposes). We also appreciate that Evelyn Rodriguez, Rivera Ortiz’ wife, likely has standing to challenge the search of the box. The Supreme Court, however, has never recognized a derivative standing doctrine that would permit a husband to vicariously assert the Fourth Amendment rights of his wife. See W. LaFave, 4 Search and Seizure § 11.3(i), at 362 & n.364 (2d ed.1987). Without explicit authorization from the Court, we are reluctant to independently establish such a doctrine. We hold that Rivera Ortiz has failed to meet his burden of proof with respect to establishing that he had a reasonable expectation of privacy in the contents of the box. See United States v. Lochan, 674 F.2d 960, 965 (1st Cir.1982). We express no opinion on the merits of the claim re garding the search of the box aside from noting that the validity of the box’s seizure does not imply that the search of the box was valid. See Texas v. Brown, 460 U.S. 730, 747, 749, 103 S.Ct. 1535, 1546, 1547, 75 L.Ed.2d 502 (Stevens, J., concurring in the judgment); see also United States v. Chadwick, 433 U.S. 1, 11-16, 97 S.Ct. 2476, 2483-86, 53 L.Ed.2d 538 (1977) (holding that in the absence of exigent circumstances, the warrantless search of a container in police custody violates the Fourth Amendment despite the fact that the police had" }, { "docid": "1197556", "title": "", "text": "material will be sealed and not disclosed to the government, since any sealing order is subject to review. An unqualified assurance would be appropriate only if the government agreed in advance not to utilize the information if it were ordered disclosed. REINHARDT, Circuit Judge, concurring: I concur in Judge Wiggins’ excellent opinion for the court. I join without reservation in the discussion regarding the first amendment. However, I believe the discussion of the fifth amendment issue, in particular the second paragraph of that discussion, at 1519, requires further comment. The Supreme Court has held that, for purposes of the fifth amendment, when an accused is required to provide testimony in order to exercise a constitutional right the testimony has been “compelled”. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); see also United States v. Kahan, 415 U.S. 239, 94 S.Ct. 1179, 39 L.Ed.2d 297 (1974) (per curiam). In Simmons, the Court held that when a defendant testifies in support of a motion to suppress evidence on fourth amendment grounds, his testimony is covered by a form of “use immunity”, and may not be used against him at trial on the issue of guilt. Simmons, 390 U.S. at 394, 88 S.Ct. at 976; see United States v. Salvucci, 448 U.S. 83, 93-94, 100 S.Ct. 2547, 2553-54, 65 L.Ed.2d 619 (1980). In Kahan, the Court considered, but did not decide, the issue of whether similar “use immunity” extends to statements a defendant makes with respect to his financial affairs in order to obtain court-appointed counsel. If a defendant seeking a court-appointed attorney refuses to file a financial affidavit and claims the protection of the fifth amendment, we will have to decide the question left open in Kahan. At that time, as Justice Marshall noted, a choice will be required: The first alternative is to permit the defendant seeking counsel as an indigent to lie about his financial situation wherever the truth might be incriminating. As a second alternative, we could require the defendant seeking appointment of counsel to tell the truth at the indigency hearing," }, { "docid": "23286261", "title": "", "text": "evidence. Co-defendants and co-conspirators are accorded no special standing, and cannot prevent the admission against them of information which is subject to suppression at the instance of another. Alderman v. United States, 394 U.S. 165, 171-172, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1968). In Wong Sun v. United States, narcotics seized from a third party held inadmissible against one defendant as the product of statements made by him at the time of his unlawful arrest, were found to be admissible against the co-defendant because “[t]he seizure of this heroin invaded no right of privacy of person or premises which would entitle [him] to object to its use at his trial.” 371 U.S. 471, 492, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963), citing Goldstein v. United States, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312 (1942). Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. Alderman v. United States, 394 U.S. at 174, 89 S.Ct. at 966; Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). As held by the Supreme Court in Alderman: There is no necessity to exclude evidence against one defendant in order to protect the rights of another. No rights of the victim of an illegal search are at stake when the evidence is offered against some other party. The victim can and very probably will object for himself when and if it becomes important for him to do so. 394 U.S. at 174, 89 S.Ct. at 967. As noted below, defendant Wall, owner of the premises from which the materials were seized, does challenge the possible violation of his own rights. In order to have standing to assert the claim discussed herein, defendant must demonstrate a legitimate expectation of privacy in the premises searched and the items seized. United States v. Salvucci, 448 U.S. 83, 91-92, 100 S.Ct. 2547, 2552-53, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 133-4, 99 S.Ct. 421," }, { "docid": "12109461", "title": "", "text": "455 (1972) (defendant who refused to execute financial affidavit not entitled to appointed counsel); Ellsworth, 547 F.2d at 1098 (citing Kaufman). In this case, Judge Will repeatedly assured Sarsoun that the government could not use the information he supplied in the financial affidavit to incriminate him. In United States v. Peister, 631 F.2d 658 (10th Cir.1980), the Tenth Circuit found that merely requiring a defendant to supply financial information does not conflict with the fifth amendment. Until the government attempts to use the information against the defendant at trial, any encroachment on the fifth amendment protection against self-incrimination is speculative and prospective only. Therefore, the trial court did not violate the defendant’s constitutional rights by denying him additional safeguards against the risk of self-incrimination. Id. at 662. See United States v. Branker, 418 F.2d 378 (2d Cir. 1969) (financial information disclosed in defendant’s motion to obtain counsel or proceed in forma pauperis may not be used to incriminate the defendant); cf. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (testimony given by defendant in support of motion to suppress evidence on fourth amendment grounds cannot be used against him at trial). In addition, a trial court may prefer an adversarial, rather than ex parte, hearing so that the government has an opportunity to object to the statements by the defendant. See Harris, 707 F.2d at 663 (“speculative possibility of inadequate protection of defendant’s fifth amendment rights is outweighed by the need to determine facts through adversarial proceedings”). Consequently, given Judge Will’s repeated assurances that Sarsoun would not risk incriminating himself by disclosing financial information, we cannot say that Judge Will was clearly erroneous in not offering the defendant additional safeguards against self-incrimination. III. CONCLUSION In affirming this case we are not holding that unless a defendant executes a particular form appointment of counsel will not be considered. That is not what happened before Judge Will. This tax protestor had reasonable and ample opportunity to secure the appointment of counsel without executing the particular form provided appointment was financially justified. It is clear, however, that" }, { "docid": "23382502", "title": "", "text": "qua passenger simply would not normally have a legitimate expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 148-49, 99 S.Ct. 421, 432-433, 58 L.Ed.2d 387 (1978) (emphasis supplied). . Appellant could have testified at the suppression hearing that he had some interest in the hashish without fear that that testimony would be used against him at trial, Simmons v. United States, 390 U.S. 377, 389-94, 88 S.Ct. 967, 973-976, 19 L.Ed.2d 1247 (1968), at least not as direct evidence. See United States v. Salvucci, 448 U.S. 83, 93-94, 100 S.Ct. 2547, 2553-2554, 65 L.Ed.2d 619 (1980). . The seeming contradiction between finding that control over a motor vehicle by a nonowner driver gives rise to an inference of knowledge of the vehicle’s contents and finding that the driver does not have an expectation of privacy in the vehicle or its contents is irrelevant. “[A] prosecutor may simultaneously maintain that a defendant criminally possessed the seized good, but was not subject to a Fourth Amendment deprivation, without legal contradiction.” United States v. Salvucci, 448 U.S. 83, 90, 100 S.Ct. 2547, 2552, 65 L.Ed.2d 619 (1980). . Fed.R.Crim.P. 14 provides in pertinent part as follows: If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. . Fed.R.Crim.P. 43(b)(1) provides as follows: (b) Continued Presence Not Required. The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived his right to be present whenever a defendant, initially present, (1) voluntarily absents himself after the trial has commenced (whether or not he has been informed by the court of his obligation to remain during the trial) [.] The constitutionality of Fed.R.Crim.P. 43(b) was upheld in Taylor v. United States 414 U.S. 17, 20, 94 S.Ct. 194, 196, 38 L.Ed.2d 174 (1973) (per curiam)." }, { "docid": "12109460", "title": "", "text": "appointed counsel to represent defendants at hearing on their eligibility for appointed counsel); United States v. Anderson, 567 F.2d 839 (8th Cir.1977) (per curiam) (trial court appointed counsel to represent defendant at hearing on his eligibility for appointed counsel; appellate court also required trial court to receive financial information at an in camera hearing); United States v. Ellsworth, 547 F.2d 1096 (9th Cir.1976), cert. denied, 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 247 (1977) (court gave defendant written assurance that court would review his financial statement in camera and then seal the contents). In some cases, trial judges may choose to offer defendants who fear self-incrimination additional safeguards. Courts, however, are not required to conduct ex parte, in camera hearings to determine whether a defendant is eligible for appointed counsel. United States v. Harris, 707 F.2d 653, 662-63 (2d Cir.), cert. denied, 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 688 (1983). See United States v. Kaufman, 452 F.2d 1202 (4th Cir.1971) (per curiam), cert. denied, 405 U.S. 989, 92 S.Ct. 1252, 31 L.Ed.2d 455 (1972) (defendant who refused to execute financial affidavit not entitled to appointed counsel); Ellsworth, 547 F.2d at 1098 (citing Kaufman). In this case, Judge Will repeatedly assured Sarsoun that the government could not use the information he supplied in the financial affidavit to incriminate him. In United States v. Peister, 631 F.2d 658 (10th Cir.1980), the Tenth Circuit found that merely requiring a defendant to supply financial information does not conflict with the fifth amendment. Until the government attempts to use the information against the defendant at trial, any encroachment on the fifth amendment protection against self-incrimination is speculative and prospective only. Therefore, the trial court did not violate the defendant’s constitutional rights by denying him additional safeguards against the risk of self-incrimination. Id. at 662. See United States v. Branker, 418 F.2d 378 (2d Cir. 1969) (financial information disclosed in defendant’s motion to obtain counsel or proceed in forma pauperis may not be used to incriminate the defendant); cf. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)" }, { "docid": "21559383", "title": "", "text": "these allegations of substantial past income are not sufficient to establish Gravatt’s present financial situation, they do point up the need for current financial information before the court may pass on the application for appointed counsel. Sarsoun, 834 F.2d at 1362, n. 8. Moreover, the court may, as part of its § 3006A(b) inquiry, resolve ambiguities in the defendant’s representations about his present income. However, because the district court’s unyielding requirement that Gra-vatt complete the CJA 23 improperly cut off examination of these matters, we are not prepared to rule on appellant’s eligibility for appointed counsel. III. A defendant’s Fifth Amendment-based refusal to complete the CJA 23 puts the trial court in the difficult position of resolving the conflict between the constitutional rights of the defendant and the interest of the government in limiting appointment of counsel to financially qualified individuals. We believe that the district court may properly reconcile these competing concerns in either of two ways. First, following the approach prescribed in Anderson, supra, the court may afford the defendant the “opportunity to disclose the required financial information to the trial court for it to review in camera, ... [following which] the financial data should be sealed and not made available for the purpose of tax prosecution.” 567 F.2d at 840; see also Ellsworth, supra, 547 F.2d at 1098. Second, if the trial court deems an adversary hearing on defendant’s request for appointment of counsel to be appropriate, the court may grant use immunity to the defendant’s testimony at that hearing. See Branker, supra, 418 F.2d at 380; Simmons v. United States, 390 U.S. 377, 389-94, 88 S.Ct. 967, 973-76, 19 L.Ed.2d 1247 (1968)(Defendant’s testimony at a pretrial suppression hearing may be excluded at trial) . Because selection of methods may involve consideration of a variety of factors best known to the district court, we will commit the choice to the sound discretion of that court. Whichever method is chosen, the defendant may be required to provide the necessary financial information under penalty of perjury. See Sarsoun, supra, 834 F.2d at 1363. Further, as was done by this" }, { "docid": "18123040", "title": "", "text": "employment, cash and other real or personal property owned, and any other forms of income received within the last year and their source. There is, however, no particular format required for the submission of financial information. United States v. Sarsoun, 834 F.2d 1358, 1361 (7th Cir.1987). To the contrary, the legislative history of the Civil Justice Act of 1964 shows that it is the court’s obligation to “scrutinize all applications for representation” by receiving information “by hearing, affidavit or other suitable investigation.” H.R.Rep. No. 864, 88th Cong., 1st Sess., reprinted in 1964 U.S.C.C.A.N. 2990, 2996. As such, the method of proof of a defendant’s financial inability to obtain counsel “necessarily varies with the circumstances presented.” United States v. Barcelon, 833 F.2d 894, 897 (10th Cir.1987). Kodzis argues that his Fifth Amendment privilege against self-incrimination would be best preserved if he was permitted to proceed by proffer of counsel in lieu of any personal statement regarding his financial status. Kodzis points out that even though financial information provided by him in support of his request for appointment of counsel cannot be used directly to incriminate him in this case, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the government could seek to use such information for other purposes such as impeachment. United States v. Kahan, 415 U.S. 239, 243, 94 S.Ct. 1179, 39 L.Ed.2d 297 (1974). Kodzis argues that he should not be required to choose between his privilege against self-incrimination under the Fifth Amendment and his right to counsel under the Sixth Amendment. This Court concludes, however, that the proffer submitted by Kodzis does not satisfy his burden of demonstrating financial inability to retain counsel. As the Supreme Court noted in Kahan, “[t]he protective shield of Simmons is not to be converted into a license for false representations on the issue of indigency free from the risk that the claimant will be held accountable for his falsehood.” This Court has an obligation under the Civil Justice Act to ensure that it is appointing counsel, and expending government funds to pay for such counsel, only" }, { "docid": "1197557", "title": "", "text": "grounds, his testimony is covered by a form of “use immunity”, and may not be used against him at trial on the issue of guilt. Simmons, 390 U.S. at 394, 88 S.Ct. at 976; see United States v. Salvucci, 448 U.S. 83, 93-94, 100 S.Ct. 2547, 2553-54, 65 L.Ed.2d 619 (1980). In Kahan, the Court considered, but did not decide, the issue of whether similar “use immunity” extends to statements a defendant makes with respect to his financial affairs in order to obtain court-appointed counsel. If a defendant seeking a court-appointed attorney refuses to file a financial affidavit and claims the protection of the fifth amendment, we will have to decide the question left open in Kahan. At that time, as Justice Marshall noted, a choice will be required: The first alternative is to permit the defendant seeking counsel as an indigent to lie about his financial situation wherever the truth might be incriminating. As a second alternative, we could require the defendant seeking appointment of counsel to tell the truth at the indigency hearing, and subject him to sanctions for his willful and knowing failure to do so, but bar use of any incriminating information so revealed. Kahan, 415 U.S. at 247, 94 S.Ct. at 1183 (Marshall, J., dissenting). If we follow the rationale of Simmons and adopt the second alternative, we will hold that defendants who incriminate themselves when executing financial affidavits enjoy use immunity. I agree with Judge Wiggins that it is not necessary for us now to decide any question relating to Nickell’s fifth amendment rights. In the case before us the appropriate time for considering the fifth amendment issue is, as Judge Wiggins states, if and when the government seeks to use any material contained in the affidavit supplied by Nickell. I would add that, in my view, Nickell’s financial disclosures were innocuous and, at most, they are highly unlikely to be incriminatory. In any event, the only conceivably incriminatory information would inevitably be discovered by the government, if it has not already done so. The opinion should not be understood as holding that the" } ]

[ { "docid": "22353910", "title": "", "text": "nolo contendere which itself has the same legal effect as a plea of guilty on all further proceedings within the indictment. The only practical difference is that the plea of nolo contendere may not be used against the defendant as an admission in a subsequent criminal or civil case.” (citation omitted)); United States v. Tunning, 69 F.3d 107, 111 (6th Cir.1995) (\"An Alford-type guilty plea is a guilty plea in all material respects.”); United States v. Morrow, 914 F.2d 608, 611 (4th Cir.1990) (same); see also Watson v. New Orleans City, 275 F.3d 46 (5th Cir.2001) where we applied Heck's favorable termination rule to a Louisiana conviction obtained via a no contest plea noting that, under Louisiana law, a no contest plea constitures a conviction. . While Ballard must establish additional elements to prove his excessive force claim, as discussed in Part II.C., infra, the only element at issue in this case is the objective reasonableness of Burton's use of force. . Hudson v. Hughes also involved state law that made the § 1983 plaintiff's allegations of excessive force necessarily inconsistent with his conviction. There, we stated that, ”[b]e-cause self-defense is a justification defense to the crime of battery of an officer, [the plaintiff's] claim that [the defendants] used excessive force while apprehending him, if proved, would necessarily imply the invalidity of his arrest and conviction for battery of an officer.” Watson v. New Orleans City, 275 F.3d 46 (5th Cir.2001) (quoting Hudson, 98 F.3d at 873). . Ballard denies pointing the rifle at any officer, but the indictment to which he pled guilty stated that he pointed the rifle \"at the said Leroy Bol[ing].” . An unpublished opinion issued after January 1, 1996 is not controlling precedent, but may be persuasive authority. 5th Cir. R. 47.5.4. . Although Ballard denied pointing the rifle at any officer, he admitted that he put Boling in fear and that he fired the 30/30 rifle several times while he was near officers. The fact that Ballard pointed the gun at law enforcement officers during the course of the night’s events is, at least" } ]

[ { "docid": "21604961", "title": "", "text": "harm of the ongoing possession and distribution of the images. Cf. Paroline, 134 S.Ct. at 1722 (“Complications may arise in disaggregating losses sustained as a result of the initial physical abuse, but those questions may be set aside for present purposes.”). Several circuit courts have expounded on. this issue post-Paroline. See, e.g., United States v. Galan, 804 F.3d 1287, 1289-91 (9th Cir. 2015) (“[T]he principles set forth by the [Supreme] Court lead to the conclusion that [the defendant] should not be required to pay for losses caused by the original abuser’s actions.”); United States v. Dunn, 777 F.3d 1171, 1181-82 (10th Cir. 2015) (“We think it inconsistent with ‘the bedrock principle that restitution should reflect the consequences of the defendant’s own conduct’ to hold [the defendant] accountable for those harms initially caused by [the victim’s] abuser.” (quoting Paroline, 134 S.Ct. at 1725)); see also United States v. Miner, 617 Fed.Appx. 102, 103 (2d Cir. 2015) (holding that the district court adequately disaggregated the victim’s losses). We have not yet directly addressed this issue and leave it in the first instance to the district court and further development of the record. In sum, on remand, the Government is permitted to present additional evidence related to the restitution award for these five victims. See Jones, 616 Fed.Appx. at 729. V. CONCLUSION For the foregoing reasons, we VACATE the restitution order and REMAND the case to the district court for further proceedings consistent with this opinion. The sentence is otherwise AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . In October 2016, while this appeal was pending, the Government filed an opposed motion to supplement the record on appeal with the letter sent by the victims’ counsel. This court granted the motion. This court also denied a motion for reconsideration filed by Jimenez. . Section 3553(b)(2) provides in full: In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under" }, { "docid": "16749861", "title": "", "text": "v. Bell, 367 F.3d 452, 471 (5th Cir.2004)). “We have repeatedly emphasized that the cumulative error doctrine necessitates reversal only in rare instances and have previously stated en banc that ‘the possibility of cumulative error is often acknowledged but practically never found persuasive.’ ” Delgado, 672 F.3d at 344 (footnote omitted) (quoting Derden v. McNeel, 978 F.2d 1453, 1456 (5th Cir.1992) (en banc)). “Its application is especially uncommon where, as here, the government presents substantial evidence of guilt.” Id. A cumulative error claim requires that “we evaluate the number and gravity of the errors in the context of the case as a whole.” United States v. Valencia, 600 F.3d 389, 429 (5th Cir.2010). As we have discussed, Ramey has demonstrated, at most, three potential errors: the government’s alleged reference to his Fifth Amendment privilege, the introduction of testimony concerning the impact of Ra-mey’s crime on a victim of the Manhattan Gold scheme, and the government’s admission of Rule 404(b) evidence in the absence of notice. Even assuming, arguendo, that these were errors, given the substantial evidence of Ramey’s guilt adduced at trial, and the relatively inconsequential nature of the errors in the context of the entirety of the case, we are not persuaded that their cumulative effect denied Ramey of a fair trial. See United States v. Neal, 27 F.3d 1035, 1051-52 (5th Cir.1994). Simply put, this is not “the unusual case in which synergistic or repetitive error violate[d]” the trial’s fundamental fairness. Delgado, 672 F.3d at 344. III. CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . As further discussed infra, Yashare testified that she followed her father’s instructions because she was \"trained and programmed” from an early age to obey Ramey and, had she protested, Ramey would have physically abused her. . The court also held that Stone's statement did not \"have the clear effect of drawing attention to the" }, { "docid": "21604962", "title": "", "text": "it in the first instance to the district court and further development of the record. In sum, on remand, the Government is permitted to present additional evidence related to the restitution award for these five victims. See Jones, 616 Fed.Appx. at 729. V. CONCLUSION For the foregoing reasons, we VACATE the restitution order and REMAND the case to the district court for further proceedings consistent with this opinion. The sentence is otherwise AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . In October 2016, while this appeal was pending, the Government filed an opposed motion to supplement the record on appeal with the letter sent by the victims’ counsel. This court granted the motion. This court also denied a motion for reconsideration filed by Jimenez. . Section 3553(b)(2) provides in full: In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless— (i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence greater than that described; (ii) the court finds that there exists a mitigating circumstance of a land or to a degree, that— (I) has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28, taking ac count of any amendments to such sentencing guidelines or policy statements by Congress; (II) has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and (III) should result in a sentence different from that described; or (iii) the court finds, on motion of the Government, that the defendant has provided substantial assistance" }, { "docid": "12332361", "title": "", "text": "Smith challenges the district court’s ruling that he did not allege that he had suffered any actual injury. “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correction facility, for mental or emotional injury while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). As Smith did not allege any physical injury stemming from his confinement in administrative segregation or in Camp J, the district court did not err in dismissing Smith’s claims that he was confined to a cell with inadequate sunlight and fresh air pursuant to Rule 12(b)(6). Smith maintains that he stated a valid claim that all of the defendants had conspired to retaliate against him. A conspiracy claim requires showings that an actual violation of § 1983 occurred and that the defendants agreed to commit an illegal act. See Hale v. Townley, 45 F.3d 914, 920 (5th Cir.1995); Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir.1982). As no § 1983 violation was established, Smith’s claim of civil conspiracy was properly dismissed under Rule 12(b)(6). See Hale, 45 F.3d at 920. Finally, the district court determined that Smith’s claim relating to the filing of a July 2006 disciplinary report was prescribed and that his claim that Voorhies and Barrere destroyed his property in December 2007 failed because Smith had an adequate state remedy for that claim. Smith has abandoned any appeal of these issues by failing to challenge them in this court. See Yohey, 985 F.2d at 225; Brinkmann, 813 F.2d at 748. The judgment of the district court is, in all respects, AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "1966644", "title": "", "text": "Gibson does not claim that he was exempted from notice requirements because he sued Kilpa-trick in his individual capacity. . Id. at 63-64. . Id. at 64 (explaining that \"we apply 'the latest and most authoritative expression of state law applicable to the facts of a case’ ”) (quoting Santibanez v. Wier McMahon & Co., 105 F.3d 234, 239 (5th Cir. 1997)), . Gibson tries to avoid Johnson by pointing to a footnote that states that \"[p]ursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent..,. 47.5.4.” Id. at 60 n.*, That standard footnote, included in all unpublished opinions as required by Fifth Circuit Rule 47.5.4, appeared because when Johnson was first issued, it was unpublished. Later, we granted a motion to publish but never reissued the opinion, so the footnote mistakenly remained. Johnson nonetheless is binding precedent under 5th Cir. R, 47.5 because it was published and appears in the West Federal Reporter, Third Series. \"An opinion is considered as 'published’ for purposes of this rule when the panel deciding the case determines, in' accordance with 5th Cir. R. 47,5.2, that the opinion will be published,,..” 5th Cir. R. 47.5.5. \"If ... any party so requests the panel will reconsider its decision not to publish.,.. The opinion will be published if ... the panel issues an order to publish-” 5th Cir. R. 47.5.2. \"[A]n opinion is published if it ... (f) is rendered in a case that has been reviewed previously and its merits addressed by an opinion of the United States Supreme Court.” 5th Cir, R. 47.5.1. .In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F,3d 281, 290-91 (5th Cir. 2012) (quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 920 F.2d 259, 262 (5th Cir. 1990))." }, { "docid": "608445", "title": "", "text": "for example, the Supreme Court has indicated that proving deliberate indifference usually requires a plaintiff to identify a pattern of similar constitutional violations, but Brown did not point to any similar incidents, much less a pattern of them. For this reason alone, summary judgment was appropriate. III. CONCLUSION Because genuine issues of material fact preclude summary judgment for Officer Lynch on Lon Brown’s § 1983 claims of unlawful arrest and excessive force, we REVERSE the district court as to these claims and REMAND for further proceedings consistent with this opinion. We AFFIRM the court’s summary judgment with respect to Brown’s claims against Chief Whitehorn and the City of Shreveport. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . A high crime area, according to Officer Lynch and Cpl. Flores. . Brown was released on bond the next morning. The criminal charges against him were dismissed. . Because we construe all facts “in the light depicted by the videotape” and, when inconclusive, in the light most favorable to the nonmoving party, the following is a distillation of Brown’s account, as corroborated (or at least not challenged) by the audio and video evidence. .Although Brown does not discuss in his brief the content of these mutterings, he testified in his deposition that he was accusing Officer Lynch of routinely harassing innocent people in the neighborhood. . Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir.2012). . FedJRXiv.P. 56(a). . Poole, 691 F.3d at 627 (citing Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.2000)). . Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir.2011) (quoting Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). . Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.2008). . Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir.2000) (citing Williams v. Bramer, 180 F.3d 699, 702 (5th Cir.1999)). . Brumfield, 551 F.3d at 326. . Pearson v." }, { "docid": "10202294", "title": "", "text": "Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. To the extent that Mitchell’s Rule 59(e) motion to alter or amend the judgment sought to undo the district court’s denial of habeas relief on the merits, it was an unauthorized successive petition that the district court lacked jurisdiction to entertain. See Gonzalez v. Crosby, 545 U.S. 524, 532 & n.4, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); Williams v. Thaler, 602 F.3d 291, 312 (5th Cir. 2010); Crone v. Cockrell, 324 F.3d 833, 836-38 (5th Cir. 2003). To the extent that the Rule 59(e) motion challenged the denial of Mitchell’s due process claim as procedurally defaulted, it was not a successive § 2254 petition, but Mitchell needs a COA to proceed on appeal. See § 2253(c)(1)(B); see also Gonzalez, 545 U.S. at 532 & n.4, 125 S.Ct. 2641; Cardenas v. Thaler, 651 F.3d 442, 443 (5th Cir. 2011). Because we discern no legal points arguable on their merits regarding this aspect of the Rule 59(e) ruling, the attempt to appeal that issue is frivolous, see Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983), and reasonable jurists could not debate whether it is adequate to- deserve encouragement to proceed further, see Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. With respect to these postjudgment rulings, we DISMISS this matter for lack of jurisdiction as remand would be futile. See Alvarez, 210 F.3d at 310. We deny Mitchell’s request for appointment of counsel. See Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985). COA -DENIED IN PART AND DISMISSED IN PART. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "1467522", "title": "", "text": "was applicable to the instant order, we would not assert jurisdiction. The order must conclusively determine the disputed question, and here, the dollar amount of contempt sanctions remains yet to be determined. There is still work for the district court to do in connection with the order before us. II. In sum, we lack appellate jurisdiction over the contempt order at issue because the fees and costs awarded have not yet been determined. We make no suggestion about our jurisdiction once the monetary sanction has been resolved. Fulton’s Rule 38 motion for damages and costs is denied. This appeal is DISMISSED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . See also Port Drum Co. v. Umphrey, 852 F.2d 148, 150 n.2 (5th Cir. 1988); Petroleos Mexicanos v. Crawford Enters., Inc., 826 F.2d 392, 398 (5th Cir. 1987); Thyssen, Inc. v. S/S Chuen On, 693 F.2d 1171, 1173 n.2 (5th Cir. 1982); ITT Cmty. Dev. Corp. v. Barton, 569 F.2d 1351, 1352 n.l (5th Cir. 1978); Sanders v. Monsanto Co., 574 F.2d 198, 199 (5th Cir. 1978); S.E.C. v. Amerifirst Funding, Inc., No. 3:07-CV-1188-D, 2008 WL 5191896, at *4 (N.D. Tex. Dec. 11, 2008)." }, { "docid": "5670275", "title": "", "text": "reason supported by the record ...”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 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.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). hi. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned their negligence misrepresentation claim." }, { "docid": "12526270", "title": "", "text": "are likewise entitled to absolute judicial immunity with respect to Severin’s claim for monetary damages. See Mitchell v. McBryde, 944 F.2d 229, 230-31 (5th Cir.1991). A court employee who acts under the explicit instructions of a judge “acts as the arm of the judge and comes within his absolute immunity,” even if the employee acts “in bad faith or with malice.” See Williams v. Wood, 612 F.2d 982, 985 (5th Cir.1980); see also Clay v. Allen, 242 F.3d 679, 682 (5th Cir.2001). To the extent that Severin seeks declaratory or injunctive relief with respect to the remaining defendants, those forms of relief are unavailable for the reasons previously discussed. F. State Law Claims In his complaint, Severin also asserted claims under state law. Because Severin’s federal claims were dismissed, the district court declined to exercise supplemental jurisdiction over his state law claims and dismissed them without prejudice. See 28 U.S.C. § 1367(c)(3) (“The district court may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction.”); see also Bass v. Parkwood Hospital, 180 F.3d 234, 246 (5th Cir.1999) (internal citations omitted) (“When a court dismisses all federal claims before trial, the general rule is to dismiss any pendent claims. However the dismissal should expressly be without prejudice so that the plaintiff may refile in the appropriate state court.”). As we affirm the dismissal of all of Severin’s federal claim, no federal question remains before the district court and we find no error in its discretionary refusal to exercise supplemental jurisdiction over Severin’s state law claims and dismissal of them without prejudice. III. CONCLUSION For the foregoing reasons, the district court’s ruling is affirmed. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4." }, { "docid": "23446408", "title": "", "text": "commit clear error in determining the amount of cocaine to be used in sentencing Gibbs. CONCLUSION The convictions and sentences of all seven Appellants are hereby AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Cooks pled guilty to various drug charges arising from the conspiracy at issue in this case. . We note that the evidence suggests otherwise, as a co-conspirators' phone number was found on a caller ID in a bedroom in which Crawford was sleeping. . Apparently, the district court determined that McGee did not have standing to challenge the search of his wife’s purse and McGee’s brief does not challenge this ruling. . Despite McGee's suggestions to the contrary, the issue under Whren is whether there was an objective basis for the stop. It is irrelevant whether the officers’ motivation was to conduct a traffic stop in the hope of finding drugs. Whren, 517 U.S. at 813, 116 S.Ct. 1769 (foreclosing any argument that the Constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.) As long as the traffic stop is proper, it is irrelevant whether the officers actually issued a citation for driving with a suspended license. . We also note that the identification of the author/declarant is not always necessary for admission of a drug ledger as a co-conspirator’s statement. United States v. Fierro, 38 F.3d 761, 773 (5th Cir.1994). . Alternatively, we note that minor participant status need not be granted to Thomas since his sentence was only based on drug activity in which he was actually involved. See United. States v. Atanda, 60 F.3d 196, 199 (5th Cir. 1995) (holding that when sentence is based on activity in which defendant was actually involved, Sentencing Guidelines do not require reduction in base offense level even though defendant's activity in larger conspiracy may have been minor or minimal); United States v. Marmolejo, 106 F.3d 1213, 1217 (5th Cir.l997)(holding that because only the" }, { "docid": "61273", "title": "", "text": "PART, and DISMISSED IN PART. Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . We take as true the facts alleged by DeLeon’s Complaint, see R. at 86-100. . Although Officers Larsen and Mata do not appear to appeal directly the district court’s denial of their Rule 7(a) motion, the district court should have ordered a Rule 7(a) reply in this case. As we have consistently held, “trial courts ought routinely require plaintiffs to file a reply under [Rule] 7(a) to qualified immunity defenses.” Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.1999). Despite the district court’s error, we need not remand this case for a Rule 7(a) reply as we are convinced, especially after oral argument, that DeLeon has pled his \"best case.” see Morin, 77 F.3d at 121. . Erubiel Cruz, et al. v. Mark DeLaPaz, et al., Civil Action No. 3:02-CV-0649-K, on appeal to this Court in Nos. 04-10488 and 04-10829. . Because the Officers specifically brief only the district court’s denial of their qualified immunity defenses as to DeLeon’s federal false arrest and state malicious prosecution claims, they have waived any appellate contest of the sufficiency of pleading of DeLeon's other claims. Shields v. Twiss, 389 F.3d 142, 151 (5th Cir.2004). Nevertheless, the outcome of this appeal will most certainly affect the district court’s treatment of the other claims. . The standard applicable to a Rule 12(c) motion is the same as that applicable to a Rule 12(b)(6) motion to dismiss for failure to state a claim. Johnson, 385 F.3d at 529. . See Anderson, 184 F.3d at 443 (finding that the Supreme Court’s decision in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), did not abrogate the heightened pleading standard established in Elliott v. Perez, 751 F.2d 1472 (5th Cir.1985), as to actions against government officials in their individual capacities). . As to Mata, the Complaint purports only to" }, { "docid": "2843175", "title": "", "text": "to have evidence tending to show, that the Government refused to file a motion for suspect reasons such as his race or his religion.” Id. The factual discrepancies between the two parties’ accounts do not entitle Brown to an evidentiary hearing. Brown would not be entitled to relief as a matter of law, because he has not alleged the Government’s failure to file the Rule 35(b) motion was the result of an unconstitutional motive. See supra Part III.B. We hold that the district court did not abuse its discretion because, as the district court correctly observed, even “[assuming arguendo that the Government did enter into a subsequent verbal agreement with the defendant, the Court could not compel the Government to file a [R]ule 35(b) motion under the circumstances here.” IV. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s decision. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Although the Government sought to enforce the waiver in the district court, the Government does not seek to enforce it in this Court. Therefore, the waiver is not binding, and this Court may consider the instant appeal. See United States v. Story, 439 F.3d 226, 231 (5th Cir.2006) (\"In the absence of the government's objection to [the appellant’s] appeal based on his appeal waiver, the waiver is not binding because the government has waived the issue.”). . The record is unclear as to Brown's relationship with the woman who made the call. At some points, she is referred to as Brown’s wife, in others, as Brown’s girlfriend. . In its opposition to Brown’s original § 2255 motion, the Government also argued that Brown waived his right to appeal, see supra, and Brown's claim was not cognizable under § 2255. The Government has not pressed these issues on appeal, and so we do not consider them here. See United States v. Griffith, 522 F.3d 607, 610 (5th Cir.2008) (\"It is a well worn principle that the" }, { "docid": "1467521", "title": "", "text": "Cunningham v. Hamilton Cty., 527 U.S. 198, 206, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999); see also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (“[T]he issue of appealability under § 1291 is to be determined for the entire category to which a claim belongs.... ”). As we have explained above, irrespective of the collateral-order doctrine, contempt orders are considered under their own regime and, in some cases, can be immediately reviewable or, in other cases, reviewable only from a final judgment in the underlying litigation. In short, this claim belongs in the category of contempt orders. See, e.g., A-Mark Auction Galleries, Inc. v. Am. Numismatic Ass’n, 233 F.3d 895, 899 (5th Cir. 2000) (holding that discovery orders arfe not appealable under the collateral-order doctrine because the subject of the order “may resist that order, be cited for contempt, and then challenge the propriety of the discovery order in the course of appealing the contempt citation\"). And even if we concluded that the collateral-order doctrine was applicable to the instant order, we would not assert jurisdiction. The order must conclusively determine the disputed question, and here, the dollar amount of contempt sanctions remains yet to be determined. There is still work for the district court to do in connection with the order before us. II. In sum, we lack appellate jurisdiction over the contempt order at issue because the fees and costs awarded have not yet been determined. We make no suggestion about our jurisdiction once the monetary sanction has been resolved. Fulton’s Rule 38 motion for damages and costs is denied. This appeal is DISMISSED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . See also Port Drum Co. v. Umphrey, 852 F.2d 148, 150 n.2 (5th Cir. 1988); Petroleos Mexicanos v. Crawford Enters., Inc., 826 F.2d 392, 398 (5th Cir. 1987); Thyssen, Inc. v. S/S Chuen On, 693 F.2d 1171, 1173 n.2 (5th" }, { "docid": "17270819", "title": "", "text": "470, 475 (5th Cir.1997) (failure to exhaust); Sossamon v. Lone Star State of Texas, 560 F.3d 316, 324 (5th Cir.2009) (mootness). Essentially for the reasons stated by the district court in its well-reasoned 26 February 2008 opinion and detailed 14 November 2008 final judgment, we affirm. Because the Government no longer seeks to impose liability on Looney pursuant to 26 U.S.C. § 6672 and has been ordered to pay Looney $2,607, her § 6672 challenges are moot. Looney’s automatic-stay claims are without merit. Although referred to as “penalty” in the statute, the liability imposed pursuant to 26 U.S.C. § 6672 is, in essence, a tax. See, e.g., Cash v. United States, 961 F.2d 562, 565 (5th Cir.1992) (“Although denoted a penalty in the statute, the liability imposed by § 6672(a) is not penal in nature because it only recovers for the Government the same amount the employer was required to withhold and remit.”). Therefore, the liability imposed pursuant to 26 U.S.C. § 6672 is exempted from the automatic stay pursuant to 11 U.S.C. § 362(b)(9)(D) (“an assessment for any tax”). To the extent Looney’s automatic-stay claim may be construed to be based on 26 U.S.C. § 7433, she failed to exhaust her administrative remedies. See 26 U.S.C. § 7433(d)(1) (exhaustion requirement). Finally, Looney’s claim that the district court’s judgment violated the “separate document” rule pursuant to the Federal Rule of Civil Procedure 58(a) is without merit because, by entering final judgment, the district court properly complied with the rule. AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "61272", "title": "", "text": "to impute to Officers Larsen (and Mata) the particular allegations against Officer DeLaPaz, citing Grandstaff v. City of Borger, 767 F.2d 161, 168 (5th Cir.1985), does not comport with the heightened pleading standard applicable in cases involving qualified immunity defenses. B. State Law Malicious Prosecution Claim Officers Larsen and Mata assert that any federal cause of action for malicious prosecution by DeLeon is foreclosed by circuit precedent. See Castellano v. Fragozo, 352 F.3d 939 (5th Cir.2003) (en banc). His malicious prosecution claim, however, is founded in state law, to which Castellano is inapplicable. Because the Officers have not briefed state law, we decline to rule on an inadequately briefed issue. CONCLUSION Based on the foregoing discussion, this court REVERSES the district court’s denial of immunity to Officers Larsen and Mata for DeLeon’s false arrest and detention claims, and we REMAND WITH INSTRUCTIONS TO DISMISS these claims. The appeal is DISMISSED insofar as it relates to the Officers’ inadequately briefed challenge to the sufficiency of pleading of DeLeon’s state law claims. REVERSED IN PART, REMANDED IN PART, and DISMISSED IN PART. Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . We take as true the facts alleged by DeLeon’s Complaint, see R. at 86-100. . Although Officers Larsen and Mata do not appear to appeal directly the district court’s denial of their Rule 7(a) motion, the district court should have ordered a Rule 7(a) reply in this case. As we have consistently held, “trial courts ought routinely require plaintiffs to file a reply under [Rule] 7(a) to qualified immunity defenses.” Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.1999). Despite the district court’s error, we need not remand this case for a Rule 7(a) reply as we are convinced, especially after oral argument, that DeLeon has pled his \"best case.” see Morin, 77 F.3d at 121. . Erubiel Cruz, et al. v. Mark DeLaPaz, et al., Civil Action No. 3:02-CV-0649-K, on appeal to this Court in" }, { "docid": "17572752", "title": "", "text": "supported by the record ... ”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 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.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). m. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned their negligence misrepresentation claim." }, { "docid": "17572751", "title": "", "text": "in both actions. As the district court pointed out, it is undisputed that the Meyerses controlled the instant action as well as the dismissed case. RMC.alleges that it is an entity owned by the Meyerses; public records show that the Meyerses are the sole managers or members of RMC; and RMC stipulated that the Meyerses owned RMC and were RMC’s sole members and managers with “full authority to exercise RMC’s powers and bring or defend claims on RMC’s behalf.” R. at 178. To whatever extent RMC has a legitimate interest in the claims and causes of action alleged in the instant action, RMC’s interests in those claims and causes of action were adequately represented by the Meyerses in the previously dismissed case. Thus, the record supports a finding of privity. Because we affirm on the district court’s dismissal of RMC’s suit on grounds of res judicata, we do not need to reach the Rule 9(b) issue. United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir.2009) (“[A court of appeals] may affirm for any reason supported by the record ... ”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 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.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). m. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned" }, { "docid": "20533845", "title": "", "text": "27 L.Ed.2d 669 (1971). Younger abstention applies when three criteria are met: “(1) the dispute should involve an ‘ongoing state judicial proceeding;’ (2) the state must have an important interest in regulating the subject matter of the claim; and (3) there should be an ‘adequate opportunity in the state proceedings to raise constitutional challenges.’ ” Wightman v. Tex. Supreme Court, 84 F.3d 188, 189 (5th Cir.1996). Each of these criteria is met in this case. First, there is an ongoing state judicial proceeding. The matter was dismissed by the SOAH administrative law judge pursuant to Texas Administrative Code § 155.501(d) and Texas Government Code § 2001.056, which allow for a dismissal of an administrative proceeding on a default basis. The matter is then returned to the referring agency for informal disposition on a default basis in accordance with Texas Government Code § 2001.056. The PAB has not yet taken up Mr. Perez’s matter and his disciplinary proceeding is still pending there. The Supreme Court has expanded the Younger doctrine to encompass state administrative proceedings. See Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). Second, as the district court noted, the State of Texas has a strong interest in protecting the public through the regulation and oversight of those practicing medicine in the state. See Tex. Occ.Code § 151.003 (“[T]he practice of medicine is a privilege and not a natural right of individuals and as a matter of public policy it is necessary to protect the public interest through enactment of this subtitle.”). Third, Appellants can raise constitutional challenges in the state courts. Texas law provides for judicial review of the administrative decision in the state courts. Tex. Gov’t Code. § 200.171. The Younger abstention therefore applies. We AFFIRM the district court. Appel-lees’ Motion to Dismiss Appeal as Frivolous is MOOT. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4." }, { "docid": "5670274", "title": "", "text": "in both actions. As the district court pointed out, it is undisputed that the Meyerses controlled the instant action as well as the dismissed case. RMC alleges that it is an entity owned by the Meyerses; public records show that the Meyerses are the sole managers or members of RMC; and RMC stipulated that the Meyerses owned RMC and were RMC’s sole members and managers with “full authority to exercise RMC’s powers and bring or defend claims on RMC’s behalf.” R. at 178. To whatever extent RMC has a legitimate interest in the claims and causes of action alleged in the instant action, RMC’s interests in those claims and causes of action were adequately represented by the Meyerses in the previously dismissed case. Thus, the record supports a finding of privity. Because we affirm on the district court’s dismissal of RMC’s suit on grounds of res judicata, we do not need to reach the Rule 9(b) issue. United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir.2009) (“[A court of appeals] may affirm for any reason supported by the record ...”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 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.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). hi. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . The Meyerses voluntarily abandoned" } ]

[ { "docid": "7723963", "title": "", "text": "consider first the application and the filing thereof in the Patent Office. The defendant claims that the pendency of that application at the time of the filing of the later application was sufficient to defeat the. patent obtained by Lange & Lamme. But this contention cannot be maintained. It may be conceded that, if Rae had pursued his application and had obtained a patent, such a consequence might have followed. But Rae’s application was not pursued. No patent was ever granted. The result was that, on the forfeiting of his application, the whole proceeding became void. There was nothing in the circumstance that it had been in the files of the Patent Office which was of a character such as to defeat the validity of the Lange & Lamme invention. “Novelty is not negatived by any prior abandoned application for a patent. Abandoned applications for patents are not, by tlie statutes, made bars to patents to. later applicants. They furnish no evidence that the processes or things they describe were ever made or used anywhere. Being only pen and ink representations ot' what may have existed only as mental conceptions of the men who put them upon paper, they do not prove that the processes or things which they depict were ever known in any country. Nor can they be classed among printed publications, for they are usually in writing, and are not published by the Patent Office.” Walker on Patents (4th Ed.) c. 3, § 58. The statute defines the circumstances required to effect such a result. The applicable provision is that of the third clause of section 4920 of the Revised Statutes (page 3395, U. S. Comp. St. 1901), which in defining the defenses which may be made to a patent says: “(3) That it had been patented or described in some printed publication prior to his supposed discovery or invention thereof.” As has been said, an application for a patent pending in the office is .not such a printed publication as the statute contemplates, and, indeed, it is not a publication at all. Then with regard to" } ]

[ { "docid": "7723962", "title": "", "text": "really the only question .presented by the case, whether' in fact the showing now made is such that the court ought to reach a different conclusion and hold the patent to be invalid. The new facts principally relied upon consist of an application for a patent filed in the Patent Office by one Frank B. Ráe on April 13, 1891, for an electric motor controller of an improved construction so nearly resembling that of- the Lange & Lamme patent as to seriously endanger the latter patent, if Rae’s application had been diligently prosecuted to the issuance of a patent thereon. But for some reason, after having rested in the Patent Office, it was abandoned and allowed to become forfeited on February 20, 1896, about five years after the application had been filed. Evidence was offered which it is claimed tends to show that, before and after this application was filed, public use was made of this invention, extending back more than two years before the filing of the application of Lange & Lamme. We will consider first the application and the filing thereof in the Patent Office. The defendant claims that the pendency of that application at the time of the filing of the later application was sufficient to defeat the. patent obtained by Lange & Lamme. But this contention cannot be maintained. It may be conceded that, if Rae had pursued his application and had obtained a patent, such a consequence might have followed. But Rae’s application was not pursued. No patent was ever granted. The result was that, on the forfeiting of his application, the whole proceeding became void. There was nothing in the circumstance that it had been in the files of the Patent Office which was of a character such as to defeat the validity of the Lange & Lamme invention. “Novelty is not negatived by any prior abandoned application for a patent. Abandoned applications for patents are not, by tlie statutes, made bars to patents to. later applicants. They furnish no evidence that the processes or things they describe were ever made or used anywhere." }, { "docid": "20104150", "title": "", "text": "Under such circumstances, it is well settled that the disclosure of the Coakwell patent constitutes prior art against appellant, and that no claim can be allowed to appellant which does not present a patentable distinction over such disclosure. In re Bicknell et al., 30 C. C. P. A. (Patents) 1250, 136 F. 2d 1016, 58 USPQ 553; In re Boileau, 35 C. C. P. A. (Patents) 1248, 168 F. 2d 753, 78 USPQ 146; and In re Bronstein, 38 C. C. P. A. (Patents) 887, 187 F. 2d 637, 89 USPQ 66. We have carefully considered appellant’s arguments that the doctrine set forth in the cases just cited was modified by the Patent Act of 1952, particularly Sections 102 and 103 thereof, but we do not find them convincing. The pertinent portions of the sections in question read: Section 102. Conditions for patentability; novelty and loss of right to patent A person shall be entitled to a patent unless — (a) The invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the application for patent, or * * * * * * * (e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or * * * * * * * (g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other. Section. 103. Conditions for patentability nonobvious subject matter A patent may not be obtained tbougb tbe invention is not identically disclosed or described as set forth in section 102 of this title, if tbe differences between" }, { "docid": "23213382", "title": "", "text": "the conditions and requirements of this title. § 102. Conditions for patentability; novelty and loss of right to patent A person shall be entitled to a patent unless-(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or (c) he has abandoned the invention, or (d) the invention was first patented or caused to be patented by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application filed more than twelve months before the filing of the application in the United States, or (e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or (f) he did not himself invent the subject matter sought to be patented, or (g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other. 35 U.S.C. §§ 101 & 102 (1976). For a discussion of the historical development of the novelty and utility requirements, see Graham v. John Deere Co., 383 U.S. 1, 5-12, 86 S.Ct. 684, 687-691, 15 L.Ed.2d 545 (1966); Kitch, Graham v. John Deere Co.: New Standards for Patents, 1966 Sup.Ct.Rev. 293, 303-30. . Patent Act of 1952, 66 Stat. 797, ch. 950." }, { "docid": "13817625", "title": "", "text": "(1956), overruled on other grounds by In re Borst, 345 F.2d 851, 854 (CCPA 1965) (stating that abandoned applications may be “evi dence of conception” but “furnish no evidence that the processes or things they describe were ever made or used anywhere” (citation omitted)); see also Singh v. Brake, 222 F.3d 1362, 1370 (Fed.Cir.2000) (“[T]o corroborate a reduction to practice, [we apply] a more stringent standard than that required to corroborate a conception. Indeed, a notebook page may well show that the inventor conceived what he wrote on the page, whereas it may not show that the experiments were actually performed, as required for a reduction to practice.” (citation omitted)); In re Costello, 717 F.2d 1346, 1350 (Fed.Cir.1983) (“[A]n abandoned application, with which no subsequent application was copending, cannot be considered a constructive reduction to practice. It is inoperative for any purpose, save as evidence of conception.”). Thus, the district court correctly determined that the 1988 application could not sufficiently corroborate Dr. Long’s testimony as a matter of law. Nonetheless, Lonza argues that an abandoned patent application may be sufficient to corroborate an alleged prior inventor’s testimony under the law as articulated in Sandt Technology and Smith v. Hall, 301 U.S. 216, 57 S.Ct. 711, 81 L.Ed. 1049 (1937). We disagree with Lonza’s reading of the case law. In the cases cited, the corroborating evidence that was found to be sufficient was far more extensive than what Lonza has offered. In each case, an abandoned patent application was offered in addition to other evidence from a time prior to or contemporaneous with the alleged invention. In Sandt Technology, four pieces of evidence were offered to corroborate the alleged inventor’s testimony, including “other contemporaneous documents [i.e., other than the abandoned patent application] to document the inventor’s testimony,” statements from an uninterested witness, and “a great deal of physical evidence made contemporaneously with [the] invention.” 264 F.3d at 1351-52. In Smith, the alleged prior user’s testimony was “abundantly corroborated by disinterested witnesses and contemporary photographs and publications describing it.” 301 U.S. at 228, 57 S.Ct. 711. Lonza cites to no case, and" }, { "docid": "11204786", "title": "", "text": "this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or “(b) the invention was patented or do-scribed in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or * sjs * “(e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or * * * * * * * “(g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.” “ § 103. Conditions for patentability; non-obvious subject matter “A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to he patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.” . The pertinent language of Rule 203 at the time of the interference proceeding is as follows: “ § 1.203 Preparation for interference betioeen applications-, suggestion of claims for interference. “(a) Before the declaration of interference, it must be determined that there is common patentable subject matter in the cases of the respective parties, patentable to each of the respective parties, subject to the determination of the question" }, { "docid": "13569116", "title": "", "text": "or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or (c) he has abandoned the invention, or (d) the invention was first patented or caused to be patented, or was the subject of an inventor’s certificate, by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application for patent or inventor’s certificate filed more than twelve months before the filing of the application in the United States, or (e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or on an international application by another who has fulfilled the requirements of paragraphs; (1), (2) and (4) of section 371(c) of this title before the invention thereof by the applicant for patent, or (f) he did not himself invent the subject sought to be patented, or (g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other. . Although Congress revised or modified the patent statute some 50 times between 1793 and 1950, see Graham v. John Deere Co., 383 U.S. 1, 10, 86 S.Ct. 684, 690, 15 L.Ed.2d 545 (1966), it did not codify the Hotchkiss requirement during this period. See, e. g., Act of July 8, 1870, c. 230, 16 Stat. 198. ." }, { "docid": "5781955", "title": "", "text": "what Waterman saw in Italy, and 8, as to the date of Armstrong’s conception and the measure of his diligence. Waterman was an emi nent electrician who went abroad to inform himself as to De Kando’s invention on behalf of parties here who contemplated buying it. The testimony warrants a further finding of fact which complainant suggests, viz., that: “(9) Tlie knowledge of De Kando’s invention and its use abroad was communicated by De liando to Waterman for the specific purpose of introducing such knowledge into the United States and of having the invention put into use in the United States.” Whatever other questions there are in the case, and many have been argued, it is manifest that the fundamental and crucial one is whether upon the facts shown Armstrong was entitled to the grant of his patent ; it not being disputed that his invention and De Kando’s are substantially the same, nor that the invention of each was made independently of any knowledge of the other’s. If Armstrong’s patent was properly issued, that ends the cause. The question thus presented involves\"the construction of two sections of the United States Revised Statutes, which have been frequently before the courts: “Sec. 4886. Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements thereof, not known or used by others in this country, before his invention or discovery thereof, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, or more than two years prior to his application, and not in public use or on sale in this country for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law, and other due proceedings had, obtain a patent therefor.” “See. 4923. Whenever it appears that a patentee, at the time of making his application for the patent, believed himself to he the original and first inventor or discoverer of the" }, { "docid": "18952512", "title": "", "text": "of the subsequently claimed invention, the appellant could not, on the second application, claim the disclosure in said prior application covered by the cancelled claims to be a reduction to practice of the invention claimed in the second application. To the same effect is Fessenden v. Wilson 18 C.C.P.A. (Patents) 1171, 48 F. (2d) 422. In The Corn-planter Patent, 23 Wall. 181, 211, the Supreme Court, in commenting upon this general subject matter, said: * * * But a mere application for a patent is not mentioned as sueli a bar. It can only have a bearing on the question of prior invention or discovery. If upon the whole of the evidence it appears .that the alleged prior invention or discovery was only an experiment and was never perfected or brought into actual use, but was abandoned and never revived by the alleged inventor, the mere fact of having unsuccessfully applied for a patent therefor cannot take the case out of the category of unsuccessful experiments. Other cases might be referred to, but, for the purposes of this opinion, it is thought that the authorities cited sufficiently indicate the proper rule in such cases. Here the applicant filed his application and proceeded to the point where there had been an interlocutory decision in the matter. Thereupon he acquiesced in the abandonment of the application. During the time when such application had become abandoned by process of law, the appellee filed his application in the Patent Office for a patent on this invention. In such case, when adverse interests have arisen, it seems to be the reasonable rule that the applicant should not be permitted to rely upon his abandoned application as a reduction to practice, but that if he is to succeed in an interference involving such adverse interests, it must be by proof of actual reduction to practice, or by proof of diligence or other facts which would entitle him to an award of priority. We do not have here a case where an application has gvone to allowance in the Patent Office, and the issuance of patent is" }, { "docid": "22665789", "title": "", "text": "directly from an application of one of the rules of the original board of “Commissioners,” n. 3, second rule, supra. “§ 101. Inventions ‘patentable “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” “§ 102. Conditions for patentability; novelty and loss of right to patent “A person shall be entitled to a patent unless— “(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or “(b) the invention was patented or described in ,a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or “(e) he has abandoned the invention, or “(d) the invention was first patented or caused to be patented by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in .this country on an application filed more than twelve months before the filing of the application in the United States, or “ (e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or “(f) he did not himself invent the subject matter sought to be patented, or “(g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.” The precursors of these sections are to" }, { "docid": "4427687", "title": "", "text": "improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. 35 U.S.C. § 102, which describes the statutory novelty required for patentability, provides in pertinent part that: A person shall be entitled to a patent unless— (a) the invention was known or used by others in this country, or patented or described in. a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or on an international application by another who has fulfilled the requirements of paragraphs (1), (2), and (4) of section 371(c) of this title before the invention thereof by the applicant for patent, or * sis * if! * (g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to, conceive and last to reduce to practice, from a time prior to conception by the other. 35 U.S.C. § 103, which sets forth the nonobviousness requirement for patentability, provides that: A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. . As another commentator described the law-fact distinction, No two term's of legal science have rendered better service than' “law” and “fact.” ... They readily accommodate themselves to" }, { "docid": "10019895", "title": "", "text": "country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or “(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or “(c) he has abandoned the invention, or “(d) the invention was first patented or caused to be patented by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application filed more than twelve months before the filing of the application in the United States, or “(e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or “(f) he did not himself invent the subject matter sought to be patented, or “(g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. Tn determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other. July 19, 1952, c. 950, § 1, 66 Stat. 797.” . With regard to the standard of invention in combination patents as expressed by the Supreme Court in Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162, see McCord Corp. v. Beacon Auto Radiator Co., Inc., 1 Cir., 193 F.2d 985, 990, where the court of appeals said that “although the court below may perhaps have been in error in construing the A. & P. ease as requiring as a sme qua non of invention a finding that the combination" }, { "docid": "834906", "title": "", "text": "not make a unique case. Besides, it does not ring quite true as a sufficient reason. It is true that the failure to put into commercial use a device which has been “reduced to practice” does not necessarily take it out of the category of completed inventions. Corona Co. v. Dovan Corp., supra. It is equally true that though filing an application is a reduction to practice and for some purposes a constructive completion of the invention, this does not of itself finally take the device but of the category of abandoned experiments. The Corn Planter Patent, 23 Wall. 181, 211, 23 L. Ed. 161. Each ease must be classified on its facts. The whole fact-controversy is thoroughly discussed by counsel; there is nothing to be gained by further discussion here. Our original conclusion is reaffirmed, and mandate will issue in accordance with the opinion on file. Sharon v. Hill (C. C. Cal.) 26 F. 337, 345; Eastern v. Welling (C. C. S. C.) 103 F. 352, 355; Green v. U. S., 18 Ct. Cl. 93, 106, 107. HICKENLOOPER, Circuit Judge (dissenting). An anomalous situation is obviously presented where, as here, the Board of Examiners in Chief specifically found prior conception and reduction to practice by the junior applicant in an interference proceeding, but that the doctrine of Mason v. Hepburn applied and “priority” must therefore be awarded and a patent granted to the senior appli cant, and this holding is broadly affirmed by the commissioner. In such a case it would seem that the interference should have been dissolved and both applications rejected. Perhaps this question can be presented to the reviewing courts only after appeal to the Court of Customs and Patent Appeals from the decision of the commissioner, or by proof, in a subsequent suit for infringement, which meets all-the requirements of certainty and conviction; but I also feel that lack of exactly analogous precedent should not prevent extension to the present ease of the broad underlying principles of the decision in Morgan v. Daniels. Were I not convinced in my own mind that the grant of" }, { "docid": "13817624", "title": "", "text": "statements and documents,” Hahn v. Wong, 892 F.2d 1028, 1032 (Fed.Cir.1989), such as “ ‘testimony of a witness, other than [the] inventor, to the actual reduction to practice or ... evidence of surrounding facts and circumstances independent of information received from the inventor,’ ” id. at 1032-33 (quoting Reese v. Hurst, 661 F.2d 1222, 1225 (CCPA 1981). “Documentary or physical evidence that is made contemporaneously with the inventive process provides the most reliable proof that the inventor’s testimony has been corroborated.” Sandt Tech., 264 F.3d at 1350-51. Such contemporaneous documentary evidence could include an abandoned patent application. However, while an abandoned patent application is evidence of conception, it is insufficient to corroborate testimony that an alleged prior inventor reduced the invention to practice. See Tex. Digital, 308 F.3d at 1218 (holding the district court did not abuse its discretion when it excluded testimony of a prior public use because an unissued patent application was the only evidence of events prior to or contemporaneous with invention); In re Schlittler, 43 C.C.P.A. 986, 234 F.2d 882, 885 (1956), overruled on other grounds by In re Borst, 345 F.2d 851, 854 (CCPA 1965) (stating that abandoned applications may be “evi dence of conception” but “furnish no evidence that the processes or things they describe were ever made or used anywhere” (citation omitted)); see also Singh v. Brake, 222 F.3d 1362, 1370 (Fed.Cir.2000) (“[T]o corroborate a reduction to practice, [we apply] a more stringent standard than that required to corroborate a conception. Indeed, a notebook page may well show that the inventor conceived what he wrote on the page, whereas it may not show that the experiments were actually performed, as required for a reduction to practice.” (citation omitted)); In re Costello, 717 F.2d 1346, 1350 (Fed.Cir.1983) (“[A]n abandoned application, with which no subsequent application was copending, cannot be considered a constructive reduction to practice. It is inoperative for any purpose, save as evidence of conception.”). Thus, the district court correctly determined that the 1988 application could not sufficiently corroborate Dr. Long’s testimony as a matter of law. Nonetheless, Lonza argues that an abandoned" }, { "docid": "22043412", "title": "", "text": "person shall be entitled to a patent unless — “(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or “(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the date of application for patent in the United States . . . .” Sections 102(a) and (b) operate in tandem to exclude from consideration for patent protection knowledge that is already available to the public. They express a congressional determination that the creation of a monopoly in such information would not only serve no socially useful purpose, but would in fact injure the public by removing existing knowledge from public use. From the Patent Act of 1790 to the present day, the public sale of an unpatented article has acted as a complete bar to federal protection of the idea embodied in the article thus placed in public commerce. In the case of Pennock v. Dialogue, 2 Pet. 1 (1829), Justice Story applied these principles under the patent law of 1800. The patentee had developed a new technique for the manufacture of rubber hose for the conveyance of air and fluids. The invention was reduced to practice in 1811, but letters patent were not sought and granted until 1818. In the interval, the patentee had licensed a third party to market the hose, and over 13,000 feet of the new product had been sold in the city of Philadelphia alone. The Court concluded that the patent was invalid due to the prior public sale, indicating that, “if [an inventor] suffers the thing he invented to go into public use, or to be publicly sold for use” “[h]is voluntary act or acquiescence in the public sale and use is an abandonment of his right. ” Id., at 23-24. The Court noted that under the common law of England, letters patent were unavailable" }, { "docid": "12039759", "title": "", "text": "102 Conditions for patentability; novelty and loss of right to patent “A person shall be entitled to a patent unless— “(a) the invention was known or used by others in this country, or patented or de scribed in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or “(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or “ (c) he has abandoned the invention, or “(d) the invention was first patented or caused to be patented by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application filed more than twelve months before the filing of the application in the United States, or “(e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for the patent, or “(f) he did not himself invent the subject matter sought to be patented, or “(g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.” § 103. 'Conditions for patentability; non-obvious subject matter “A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the difference between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was" }, { "docid": "11204785", "title": "", "text": "patent to it. A summary judgment that the entire Robinson patent is invalid will therefore be denied. Movants have not pressed in their briefs the argument that a summary judgment should be granted for them on Sprague’s counterclaim in the event that the Court refused to grant a summary judgment that the Robinson patent was invalid. Indeed Movants concede that the manganese dioxide they used in their capacitors is the functional equivalent of the lead peroxide mentioned in Claim 5 of Robinson’s patent. The doctrine of equivalents, Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 70 S.Ct. 854 (1950), may well afford Sprague protection against the use of manganese dioxide. In any event this is a factual determination that must be made after a trial. The motion for summary judgment is denied. So ordered. . “§ 112. Specification . “§ 102. Conditions for patentability; novelty and loss of right to patent “A person shall be entitled to a patent unless— “(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or “(b) the invention was patented or do-scribed in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or * sjs * “(e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or * * * * * * * “(g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to" }, { "docid": "18952511", "title": "", "text": "the Primary Examiner, the appellant amended his application so as to eliminate all claims for the invention later claimed, and the application then went to patent. A considerable period thereafter the appellant attempted to claim a constructive reduction to practice of the invention in issue, based upon this early application. This was not allowed, the court holding that the appellant, having acquiesced in the action of the Patent Office, could not claim his disclosure in said prior application as a constructive reduction to practice. In harmony with the general principle underlying these cases is our decision in Conover v. Downs, 17 C.C.P.A. (Patents) 587, 35 F. (2d) 59. There a constructive reduction to practice was claimed as to certain subject matter disclosed by an application which had gone to patent, and in which application and patent there were no claims for the processes involved in the subsequent application. This court held that inasmuch as the appellant had acquiesced in the request of the Patent Office that he cancel certain claims which included the subject matter of the subsequently claimed invention, the appellant could not, on the second application, claim the disclosure in said prior application covered by the cancelled claims to be a reduction to practice of the invention claimed in the second application. To the same effect is Fessenden v. Wilson 18 C.C.P.A. (Patents) 1171, 48 F. (2d) 422. In The Corn-planter Patent, 23 Wall. 181, 211, the Supreme Court, in commenting upon this general subject matter, said: * * * But a mere application for a patent is not mentioned as sueli a bar. It can only have a bearing on the question of prior invention or discovery. If upon the whole of the evidence it appears .that the alleged prior invention or discovery was only an experiment and was never perfected or brought into actual use, but was abandoned and never revived by the alleged inventor, the mere fact of having unsuccessfully applied for a patent therefor cannot take the case out of the category of unsuccessful experiments. Other cases might be referred to, but, for the" }, { "docid": "22051518", "title": "", "text": "patentability; novelty and loss of right to patent,” and provides: “A person shall be entitled to a patent unless— “(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or “(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or “(c) he has abandoned the invention, or “(d) the invention was first patented or caused to be patented, or was the subject of an inventor’s certificate, by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application for patent or inventor’s certificate filed more than twelve months before the filing of the application in the United States, or “(e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or on an international application by another who has fulfilled the requirements of paragraphs (1), (2), and (4) of section 371 (c) of this title before the invention thereof by the applicant for patent, or “(f) he did not himself invent the subject matter sought to be patented, or “ (g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.” Arguably, the claims in Flook did mare than present a mathematical formula. The claims also solved the calculation in order to produce" }, { "docid": "8934661", "title": "", "text": "first diameter portion, the second diameter portion having a larger diameter than the first diameter portion, said second diameter portion being provided with at least one drainage opening through which blood can drain, said second diameter portion being further provided with substantially continuous reinforcement means at the location of each such drainage opening such that the reinforcement means reinforces the second diameter catheter portion surrounding the periphery of each such opening; and a second transition catheter portion between the first and second diameter portions, forming a smooth transition between the first diameter portion and the second diameter portion. (Emphasis in original). . Section 102, U.S.C. 35 provides, in relevant part: A person shall be entitled to a patent unless— (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent, or (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or (f) he did not himself invent the subject matter sought to be patented, or (g) before the applicant's invention thereof the invention was made in the country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and-last to reduce to practice, from a time prior to conception by the other. . Dr. Bailey was a recipient of the Shiely/Dek-natel Award in 1980, an award given the most distinguished pioneers in cardiac surgery for the period 1940 to 1980. He received several other coveted awards in his field, published hundreds of papers on cardiac surgery and served in leadership positions in his professional organizations. Dr. Bailey wrote for and edited several textbooks and journals" }, { "docid": "20553716", "title": "", "text": "in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or “(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or “(c) he has abandoned the invention, or “(d) the invention was first patented or caused to be patented by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application filed more than twelve months before the filing of the application in the United States, or “(e) tiie invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or “(f) he did not himself invent the subject matter sought to be patented, or “(g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention that shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.” . 35 U.S.C.A. § 103, provides as follows: “A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.” . Blumeraft" } ]

[ { "docid": "22134061", "title": "", "text": "interviewees for flight officer positions generally have less aeronautical experience than male interviewees. Although its reasoning is somewhat unclear, the court apparently assumed that the male interviewee’s advanced aeronautical experience level allowed them to perform better during interviews, thereby accounting for the higher male pass rate. Be cause Ms. Buffington's statistics did not factor in this difference in experience level, the district court found the analysis “not particularly meaningful,” and granted United’s motion for summary judgment. We review the district court’s grant of summary judgment de novo, applying the same legal standard as the district court. Simms v. Oklahoma, 165 F.3d 1321, 1326 (10th Cir.1999), petition for cert. filed (U.S. May 24, 1999) (No. 98-1884). We “examine the record to determine if any genuine issue of material fact was in dispute; if not, we determine if.the substantive law was correctly applied.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). In applying this standard, we view the factual record and inferences therefrom in the light most favorable to the nonmoving party. Simms, 165 F.3d at 1326. However, to survive summary judgment, the nonmov-ing party may not rest upon the allegations or denials of his or her pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Id. Summary judgment is appropriate if the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Ms. Buffington used a type of statistics called applicant flow data to establish her disparate impact claim. Applicant flow data, long recognized as an acceptable comparison model in discrimination cases, generally contrasts the racial or gender composition of persons who applied for the position and persons holding the at-issue jobs. See, Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 650-51, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) (recognizing that statistics measuring “otherwise qualified applicants” may be probative in disparate impact cases); Hazelwood Schl. Dist. v. United States, 433 U.S. 299, 309 n." } ]

[ { "docid": "13008420", "title": "", "text": "de novo, applying the same legal standard used by the district court.” Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 528 U.S. 815, 120 S.Ct. 53,145 L.Ed.2d 46 (1999). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmov-ing party.” Simms, 165 F.3d at 1326. “ ‘[Wjhere the non moving party will bear the burden of proof at trial on a dispositive issue’ that party must ‘go beyond the pleadings’ and ‘designate specific facts’ so as to ‘make a showing sufficient to establish the existence of an element essential to that party’s case’ in'order to survive summary judgment.” McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir.1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). We also review de novo the district court’s denial of Eleventh Amendment immunity. See Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir.2000). Because Mr. Simmons’ cross-appeal raises Eleventh Amendment immunity, which is a challenge to the subject matter jurisdiction of the district court, this “issue must be resolved before a court may address the merits.” Fent v. Oklahoma Water Resources Bd., 235 F.3d 553, 558 (10th Cir.2000) (quotation marks and citation omitted). As such, we must first determine whether Mr. Simmons, in his official capacity, is immune from this suit under the Eleventh Amendment. DISCUSSION A. Eleventh Amendment Immunity from Suit The Eleventh Amendment provides: The Judicial power of the United States shall not be construed to extend 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.," }, { "docid": "20109625", "title": "", "text": "party is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir.1985). The requirement of a “genuine” issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party has the burden of showing the absence of a genuine issue of material fact. This burden “may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s ease.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). “[A] party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues. United States v. O’Block, 788 F.2d 1433, 1435 (10th Cir.1986). The court must also consider the record in the light most favorable to the party opposing the motion. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). For the negligence aspect of the plaintiffs’ claims, they must establish the bank owed them a duty of care which it breached, they were damaged, and there is a causal connection between the duty breached by the bank and the plaintiffs’ damages. Tersiner v. Union Pacific R. Co., 740 F.Supp. 1519, 1524 (D.Kan.1990). As stated by the court, “The occasions are extremely rare where a court is justified in taking the case" }, { "docid": "22808867", "title": "", "text": "1601.12(b). If the amendments involve acts that “relate[ ] to or grow[ ] out of the subject matter of the original charge,” the amendments will “relate back to the date the charge was first received.” Id.; see 29 C.F.R. § 1626.8(c). Manning contends that his amendment, which added a disability discrimination claim, is sufficiently related to the subject matter of his original charge (ie., his race, gender, and retaliation claims) to “relate back” to the date of his original charge. As a result, he claims, his disability discrimination claim should be deemed timely. Generally, amendments that raise a new legal theory do not “relate back” to an original charge of discrimination. See, e.g., EEOC v. Miss. Coll., 626 F.2d 477, 483-84 (5th Cir.1980) (observing that “[b]ecause [the claimant’s] allegations of racial discrimination do not relate to or grow out of the allegations of sex discrimination advanced in the original charge, that aspect of the amended charge does not relate back to the time of filing of [the] original charge”); Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1327 (10th Cir.1999) (holding that the plaintiffs amended charge did not relate back under § 1601.12(b), because the original charge alleged only race discrimination, while the amended charge included “a new theory of recovery” — retaliation); Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 575 (7th Cir.1998) (“[A]n untimely amendment that alleges an entirely new theory of recovery does not relate back to a timely filed original charge.”); id. at 576 (concluding that an amendment containing a claim of disability discrimination did not relate back to the original charge, which alleged age discrimination); Evans v. Tech. Applications & Serv. Co., 80 F.3d 954, 963-64 (4th Cir.1996) (holding that the plaintiffs age discrimination claim did not relate back to the originally filed charge of sex discrimination). This rule has an important policy justification. One of the central purposes of the employment discrimination charge is to put employers on notice of “the existence and nature of the charges against them.” EEOC v. Shell Oil Co., 466 U.S." }, { "docid": "9443401", "title": "", "text": "keep [her] at a lower position and salary.” Seaboard contends that because the EEOC charge did not mention protected activity on March 6, 2001, plaintiffs retaliation claim is barred. Plaintiff argues that her narrative, along with her check in the “retaliation” box, gave Seaboard sufficient notice of her retaliation claim. Congress has established various administrative remedies which plaintiffs must exhaust before filing suit in federal court. The ADEA mandates that “[n]o civil action may be commenced by an individual under this section until 60 days after a charge” has been filed with the EEOC. 29 U.S.C. § 626(d). Exhaustion of administrative remedies is a jurisdictional prerequisite. See Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir.1996). In Kansas, age discrimination is statutorily prohibited. K.S.A. §§ 44-1111 et seq. The ADEA therefore requires that plaintiff file her EEOC charge within 300 days of the alleged discrimination. 29 U.S.C. §§ 626(d)(2), 633(b). Generally, a plaintiff may not bring a claim unless it was part of the timely-filed administrative charge for which she has received a right-to-sue letter. Wallace v. Beech Aircraft Corp., 87 F.Supp.2d 1138, 1145-46 (D.Kan.2000) (citing Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.), cert. denied 528 U.S. 815, 120 S.Ct. 53, 145 L.Ed.2d 46 (1999)). The charge “shall be in writing and signed and shall be verified,” 29 C.F.R. § 1601.9, and must at a minimum identify the parties and “describe generally the action or practices complained of,” id. § 1601.12(b). The charge tells the EEOC what to investigate, provides it the opportunity to conciliate the claim, and gives the charged party notice of the alleged violation. See Seymore, 111 F.3d at 799; Albano v. Schering-Plough Corp., 912 F.2d 384, 388 (9th Cir.1990) (EEOC charge serves primarily as impetus to EEOC investigation and conciliation); 29 C.F.R. § 1601.14(a) (requiring EEOC generally to send copy of charge to charged party or respondent within ten days of its filing); cf. EEOC v. Shell Oil Co., 466 U.S. 54, 64, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984) (“EEOC’s investigative authority is" }, { "docid": "22833818", "title": "", "text": "on file, together with the affidavits, if any, show that there is no genuine issue \"as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmov-ing party. English v. Colorado Dep’t of Corr., 248 F.3d 1002, 1007 (10th Cir.2001) (quoting Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999)). In cases such as this, “ ‘where the nonmoving party will bear the burden of proof at trial on a dispositive issue’ that party must ‘go beyond the pleadings’ and ‘designate specific facts’ so as to ‘make a showing sufficient to establish the existence of an element essential to that party’s case’ in order to survive summary judgment.” McKnight v. Kimberly Clark Coiy., 149 F.3d 1125, 1128 (10th Cir.1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Mr. Garrett does not rely on direct evidence of discrimination in making his case. Rather, he points to circumstantial evidence to demonstrate that HP’s actions were discriminatory. In cases brought under Title VII and the ADEA where circumstantial evidence is the basis for the claim, our analysis at the summary judgment stage is governed by the burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L,Ed.2d 668 (1973). See, e.g., Amro v. Boeing Co., 232 F.3d 790, 796 (10th Cir.2000); Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir.1998). The McDonnell Douglas test involves a three-step analysis. First, the plaintiff must prove a prima facie case of discrimination. If the plaintiff satisfies the prima facie requirements, the defendant bears the burden of producing a legitimate, nondiscriminatory reason for its action. If the defendant does so, the plaintiff must either show that his race, age, gender, or other illegal consideration was a determinative factor in the defendant’s employment decision, or show that the defendant’s" }, { "docid": "9751051", "title": "", "text": "depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We must look carefully to determine if existing factual disputes are material, because “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court may not grant summary judgment when “a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. When the moving party has informed the district.court of the basis for its motion, however, a nonmoving party may not stand merely on its pleadings, but must set forth “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed.R.Civ.P. 56(e)). In our application of this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. Simms v. Oklahoma ex rel. Department of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999). Furthermore, as a federal court sitting in diversity, we must ascertain the applicable Wyoming law as announced by the Wyoming Supreme Court so that the substantive law applied in federal court does not differ from what would apply in state court. Wood v. Eli Lilly & Co., 38 F.3d 510, 512 (10th Cir.1994). A To protect providers of recreational sports and activities from liability for alpine siding, equine activities, and other outdoor pursuits in the state, the Wyoming legislature limited their duty of care by enacting the Wyoming Recreation Safety Act. Wyo. Stat. Ann. § 1-1-121 et. seq.; see Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1101 (10th Cir.2002). As a matter of common law, in order to prevail in" }, { "docid": "23192263", "title": "", "text": "belief would have been a non-discriminatory reason for the promotion. Jaramillo Dep., Appellant’s App. at 94. Accordingly, the CJD has produced a legitimate, nondiscriminatory reason for its decision. B. Evidence of Pretext Ms. Jaramillo argues, nonetheless, that the CJD’s explanation is merely pretext for discrimination. A plaintiff demonstrates pretext by producing evidence of “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997) (quoting Olson v. General Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir.1996)). Evidence of pretext may include “prior treatment of plaintiff; the employer’s policy and practice regarding minority employment (including statistical data); disturbing procedural irregularities (e.g., falsifying or manipulating ... criteria); and the use of subjective criteria.” Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1217 (10th Cir.2002) (quoting Simms v. Oklahoma ex rel. Dept. of Mental Health and Substance Abuse Servs., 165 F.3d 1321, 1328 (10th Cir.1999)). 1. Job Qualifications Ms. Jaramillo claims that the promotion of Mr. Sandoval was patently unreasonable, thereby supporting the inference of discrimination, because she was far more qualified for the job. We must proceed with caution when considering the relative merits of individual employees. The courts may not “act as a super personnel department that second guesses employers’ business judgments.” Simms, 165 F.3d at 1330 (quotation omitted). Accordingly, minor differences between a plaintiffs qualifications and those of a successful applicant are not sufficient to show pretext. Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1319 (10th Cir.1999), overruled on other grounds, Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). To show pretext, the disparity in qualifications must be “overwhelming.” Id. at 1319 (citing Sanchez v. Philip Morris, 992 F.2d 244, 247-48 (10th Cir.1993)); see also Odom v. Frank, 3 F.3d 839, 847 (5th Cir.1993) (explaining that the difference in qualifications must be so glaring as to “jump off the page and" }, { "docid": "8908014", "title": "", "text": "the same legal standard used by the district court. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmov-ing party. Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999) (citation omitted). “ ‘[W]here the non moving party will bear the burden of proof at trial on a dispositive issue’ that party must ‘go beyond the pleadings’ and ‘designate specific facts’ so as to ‘make a showing sufficient to establish the existence of an element essential to that party’s case’ in order to survive summary judgment.” McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir.1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). III. DISCUSSION A. McDonnell Douglas Burden Shifting Approach in Title VII, § 1981 and § 1988 Claims English does not dispute the district court’s holding that he did not put forth sufficient direct evidence of discrimination to survive summary judgment. We therefore review his case for indirect evidence of racial discrimination under the burden-shifting approach established by McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Kendrick v. Penske Transp. Svc., 220 F.3d 1220, 1225-26 (10th Cir.2000); Perry v. Woodward, 199 F.3d 1126, 1135 (10th Cir.1999). “While McDonnell Douglas involved a Title VII claim for failure to hire, the analytical framework it pioneered applies equally to claims brought pursuant to section 1981,” as well as to § 1983 claims based on allegations of racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Kendrick, 220 F.3d" }, { "docid": "342285", "title": "", "text": "U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). . See Anderson, 477 U.S. at 256, 106 S.Ct. 2505. . Id. . See id. . See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). . Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). . The validity and extent of KCI’s copyright in the \"I Like Me!” book is disputed by defendant Donald DeMoulin. . K.S.A. 56-306 (1972). . K.S.A. 56a-101 et seq. (1999). . Hecker, The Kansas Revised Uniform Partnership Act, 68 Oct. J. Kan. B.A. 16, 17 (1999). . Id. at 31. .K.S.A. 56-321 (repealed 1999). This section provided that a partner must account to the partnership for any benefit, and hold as trustee any profit, derived without consent of the other partners from any transaction connected with formation, conduct, or liquidation of the partnership, or from use by the partner of partnership property. . K.S.A. 56a-404(a)-(c) (1999). . K.S.A. 56a-404 (a), (d) (1999). . K.S.A. 56a-1304(a)(l) (1999). . K.S.A. 56a-1304(a)(2). . First Hays Banshares, Inc. v. Kansas Bankers Sur. Co., 244 Kan. 576, 586, 769 P.2d 1184 (1989). . Missouri Pacific R.Co. v. Kansas Gas and Elec. Co., 862 F.2d 796, 799 (10th Cir.1988) (applying Kansas law). . See Wood River Pipeline Co. v. Willbros Energy Services Co., 241 Kan. 580, 738 P.2d 866, 869 (1987) (quoting Hall v. Mullen, 234 Kan. 1031, 678 P.2d 169 (1984)). . Carland v. Metropolitan Life Ins. Co., 935 F.2d 1114, 1120 (10th Cir.), cert. denied 502 U.S. 1020, 112 S.Ct. 670, 116 L.Ed.2d 761 (1991) (applying Kansas law); Simon v. National Farmers Organization, Inc., 250 Kan. 676, 829 P.2d 884, 888 (1992). . Brumley v. Lee, 265 Kan. 810, 813, 963 P.2d 1224 (1998). . Hart v. Sprint Communications Co., L.P., 872 F.Supp. 848, 854 (D.Kan.1994); Allied Mutual Insurance Co., v. Moeder, 48 P.3d 1, 4 (2002). . Albers v. Nelson, 248 Kan. 575, 578, 809 P.2d 1194 (1991). . See Thomas v. Thomas, 250 Kan. 235, 244, 824 P.2d 971 (1992). . Eggleston" }, { "docid": "18068025", "title": "", "text": "appeal followed. II. Discussion It is unlawful for employers to deprive an individual of employment opportunities based on his or her sex. 42 U.S.C. § 2000e-2(a)(2). It is also unlawful for any employer to refuse to hire, fire, or otherwise discriminate in compensation or employment terms against any individual based on age. 29 U.S.C. § 623(a)(1). When a plaintiff asserts a sex or age discrimination claim but cannot produce any direct evidence of discrimination, as here, the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972), applies. Under this framework, a plaintiff must first establish a prima facie case of discrimination by showing (1) membership in a protected class and (2) an adverse employment action (3) that took place under circumstances giving rise to an inference of discrimination. EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir.2007). If a plaintiff can establish a prima facie case, the burden shifts to the employer to assert a legitimate nondiscriminatory reason for its actions. If it can do so, the burden shifts back to the plaintiff to introduce evidence that the stated nondiscriminatory reason is merely a pretext for discriminatory intent. Simmons v. Sykes Enters., 647 F.3d 943, 947 (10th Cir.2011). We review the district court’s order granting summary judgment de novo. Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999). In so doing, we must view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in his or her favor. Id. We must not judge witness credibility or weigh evidence. Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216 (10th Cir.2003). A grant of summary judgment is proper only if there is no genuine dispute as to any material fact, and the evidence is such that no reasonable jury could find in favor of the nonmoving party. 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). With these legal standards in mind, we turn to Daniels’s" }, { "docid": "17608769", "title": "", "text": "granted in part and denied in part. The motion is granted on the municipal liability claim under 42 U.S.C. § 1981 and otherwise denied. IT IS SO ORDERED. . Fed.R.Civ.P. 56(a). . Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.2002). . Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). . Adler, 144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Spaulding, 279 F.3d at 904 (citing Celotex Cotp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671). . Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). . Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197-98 (10th Cir.2000) (quoting Adler, 144 F.3d at 671). . Adams, 233 F.3d at 1246. . Fed.R.Civ.P. 56(c)(4). . Id.; Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006) (citation omitted). . Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). . Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). . See also Fed.R.Civ.P. 56(c)(1). . Fed.R.Civ.P. 56(e)(2). . Doc. 152-1, Ex. A at A00291. . Doc. 154-4, Ex. R at 170:1-8, 176:1-6. . Doc. 154-6, Ex. AA. . Doc. 154-2, Ex. H. . Doc. 154-7, Ex. PP. . Doc. 154-7, Ex. YY at 43:22-25, 45:17-18. . Id. at 55:24-25. . Id. at 56:1-4. . Id. at 41:8-11. . Doc. 154-8. Ex. HHH. . Doc. 154-5. Ex. T. . 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36" }, { "docid": "3137753", "title": "", "text": "period in front of the arbitrators; this is the same evidence which the arbitrators termed pertinent. Thus, the Court denies B-S Steel’s request to reconsider its ruling. IT IS THEREFORE ORDERED BY THE COURT that B-S Steel’s Motion to Clarify the Court’s July 9, 2004 Order Regarding Collateral Estoppel, or in the Alternative, to Reconsider its Application and Suggestions in Support (Doc. 324) is DENIED. IT IS SO ORDERED. . Fed.R.Civ.P. 56(c). . See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). . Id. at 251-52, 106 S.Ct. 2505. . See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). . See Anderson, 477 U.S. at 256, 106 S.Ct. 2505. . Id. . See id. . See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). . Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). . 15 U.S.C. § 15(a). . 15 U.S.C. §26. . B-S Steel of Kansas, Inc. v. Texas Indus., Inc., 229 F.Supp.2d 1209 (D.Kan.2002). . Memorandum and Order Denying Motion to Vacate and Granting Motion to Confirm Arbitration Award, Case No. 01-2410, Doc. 304. . Nwosun v. Gen. Mills Restaurants, Inc., 124 F.3d 1255, 1258 (10th Cir.1997). . Id. . Wilkes v. Wyoming Dep’t of Employment, 314 F.3d 501, 503-04 (10th Cir.2002). . Id. at 504. . Nwosun, 124 F.3d at 1257. . See Memorandum and Order Denying Motion to Dismiss, Case No. 03-2664, Doc. 15; Memorandum and Order Denying Motion to Vacate and Granting Motion to Confirm Arbitration Award, Case No. 01-2410, Doc. 304. . McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1034 (10th Cir.2000). . See Coffey v. Dean Witter Reynolds Inc., 961 F.2d 922, 925 n. 4 (10th Cir.1992). . See Coffey v. Dean Witter Reynolds Inc., 961 F.2d 922, 927-28 (10th Cir.1992) (holding that a confirmed arbitration award is a final judgment on the merits). . Lowell Staats Mining Co. v. Philadelphia Elect. Co., 878 F.2d 1271, 1275 (10th Cir.1989). . Id." }, { "docid": "3043853", "title": "", "text": "inappropriate behaviors, you are being separated from employment. Aplt.App. at 15. At the time, as S.F. Phosphates was aware, Mr. Hardy was sixty years old and previously had had bypass surgery and a heart attack. II. A grant of summary judgment is appropriate only if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Templeton v. Neodata Servs. Inc., 162 F.3d 617, 618 (10th Cir.1998). “ ‘Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.’ ” Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir.1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). We review Mr. Hardy’s ADA and ADEA claims under the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997) (disability); Greene v. Safeway Stores, Inc., 98 F.3d 554, 558-59 (10th Cir.1996) (age). Under this framework, the plaintiff has the burden of articulating a prima facie case of discrimination. The burden of production then shifts to the employer to articulate a legitimate nondiscriminatory reason for taking the adverse action against the plaintiff. See Sanchez, 164 F.3d at 531; Morgan, 108 F.3d at 1323. The burden then shifts back to the plaintiff to present evidence “such that a reasonable jury could conclude that the proffered nondiscriminatory reason for the employment action is pretextual, that is, ‘unworthy of belief.’ ” Simms v. Oklahoma ex rel. Dep’t of Mental Health and Substance Abuse Servs., 165 F.3d 1321, 1328 (10th Cir.1999); see also Sanchez, 164 F.3d at 531; Morgan, 108 F.3d at 1323. “Pretext can be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.” Morgan, 108 F.3d" }, { "docid": "365747", "title": "", "text": "the record in the light most favorable to plaintiff, as the Court is required to do, plaintiffs theory of the case provides the appropriate analytical framework. From that perspective, it appears that roughly six weeks after plaintiff returned from her second FMLA leave, Sprint terminated her employment. A month is the sort of short time period that can support an inference of causation between FMLA leave and adverse action. See Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir.1996) (one month between time wife filed complaint and when defendant began disciplining husband supported inference of discrimination); Ramirez v. Okla. Dept. of Mental Health, 41 F.3d 584, 596 (10th Cir.1994) (one month supports inference). Under these facts, plaintiff has sufficiently supported her prima facie case of retaliation on the issue of causation. B. Pretext Defendants state that they had legitimate reasons for terminating plaintiffs employment because she had attendance and personal effectiveness problems. Since defendants advance legitimate reasons for their actions, plaintiff may not rest on her prima facie case but must offer evidence that defendants’ reason is a pretext for discrimination. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1396 (10th Cir.1997);. When assessing a contention of pretext, the Court examines the facts “as they appear to the person making the decision to terminate plaintiff.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir.2000); see also Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1209 (10th Cir.1999) (noting that manager’s perception of employee’s performance.is relevant in determining pretext). The Court may not second guess the business judgment of the employer. See Simms v. Okla. ex rel. Dept. of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir.1999), cert. denied, 528 U.S. 815, 120 S.Ct. 53, 145 L.Ed.2d 46 (1999). The relevant question is whether the reason articulated by the employer was the real reason for the challenged action. Timing is not necessarily enough to support an inference of pretext. See Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1260" }, { "docid": "13184294", "title": "", "text": "Therefore, defendants are entitled to qualified immunity for their actions, and summary judgment must be granted in favor of defendants. IT IS THEREFORE ORDERED BY THE COURT that defendants’ Motion for Summary Judgment (Doc. 25) is GRANTED. IT IS SO ORDERED. . 28 U.S.C. § 1367. . Penteco Corp. v. Union Gas System, 929 F.2d 1519, 1521 (10th Cir.1991) (internal citations and quotations omitted). . United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 797 (10th Cir.2002). . Id. at 798. . Fed.R.Civ.P. 56(c). . Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). . Id. . Id. at 251-52, 106 S.Ct. 2505. . Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). . Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir.2003) (citing Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548). . Id. . id. . Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). . D. Kan. R. 6.1(d)(2). . D. Kan. R. 7.4. . See Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir.2002) (stating that \" '[n]o defense to an insufficient showing is required' \" from the nonmoving party (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 161, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970))). . Id. at 1194. . Id. . Id. at 1194-95. . Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). . Id. atlllO. . Id. . Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991). . Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.1994), cert. denied, 513 U.S. 1090, 115 S.Ct. 750, 130 L.Ed.2d 650 (1995). . Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.1992), cert. denied, 507 U.S. 940, 113 S.Ct. 1336, 122 L.Ed.2d 720 (1993); Campbell v. Meredith Corp., 260 F.Supp.2d 1087, 1097 n. 10 (D.Kan.2003). . Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir.1992). . D. Kan. 56.1(a) provides that \"[a]ll material facts set forth in the statement of the" }, { "docid": "365748", "title": "", "text": "that defendants’ reason is a pretext for discrimination. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1396 (10th Cir.1997);. When assessing a contention of pretext, the Court examines the facts “as they appear to the person making the decision to terminate plaintiff.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir.2000); see also Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1209 (10th Cir.1999) (noting that manager’s perception of employee’s performance.is relevant in determining pretext). The Court may not second guess the business judgment of the employer. See Simms v. Okla. ex rel. Dept. of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir.1999), cert. denied, 528 U.S. 815, 120 S.Ct. 53, 145 L.Ed.2d 46 (1999). The relevant question is whether the reason articulated by the employer was the real reason for the challenged action. Timing is not necessarily enough to support an inference of pretext. See Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1260 (10th Cir.2001). To support her charge of pretext, plaintiff does not rely solely on the timing of events; she also cites the testimony of Dillard, who allegedly expressed concern that McCurdy and Carson were building a file on plaintiff and that the time pool issue was a “sham issue” as to plaintiff. See Plaintiffs Response To Defendants’ Statement Of Uncontroverted Facts in Plaintiffs Opposition Memorandum (Doc. # 115) at page 9, ¶ 80. As previously noted, however, plaintiff has not attached a copy of the cited deposition testimony and the Court cannot consider it. Defendants point out that Dillard first made these alleged comments before plaintiff took her first FMLA leave, nine months before plaintiffs termination. Because the deposition transcript is not available, however, the Court cannot properly assess the context and import of Dillard’s testimony. Notwithstanding any implausibilities, inconsistencies, or contradictions in defendants’ course of conduct, the Court is convinced that plaintiff has not shown a genuine issue of material fact whether the proffered reasons for termination are unworthy of belief. The evidence that" }, { "docid": "18068026", "title": "", "text": "can do so, the burden shifts back to the plaintiff to introduce evidence that the stated nondiscriminatory reason is merely a pretext for discriminatory intent. Simmons v. Sykes Enters., 647 F.3d 943, 947 (10th Cir.2011). We review the district court’s order granting summary judgment de novo. Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999). In so doing, we must view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in his or her favor. Id. We must not judge witness credibility or weigh evidence. Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216 (10th Cir.2003). A grant of summary judgment is proper only if there is no genuine dispute as to any material fact, and the evidence is such that no reasonable jury could find in favor of the nonmoving party. 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). With these legal standards in mind, we turn to Daniels’s claims of error. A. Failure to Promote Daniels’s first claim is that UPS discriminated against her on the basis of her age and sex when it failed to promote her in 2005 and 2006, after she filed letters with HR indicating her interest in receiving a promotion. She asserts a cause of action accrued either at that time, or when HR manager Liberti told Daniels in 2008 that UPS violated its promotion policy by failing to follow up on her letters of interest. “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(l); see also 29 U.S.C. § 626(d). In states with a state agency that has authority over employment discrimination claims, including Kansas, employees have up to 300 days to file an EEOC charge if they first file a charge with the state agency. Id. A claim not filed within these statutory limits is time barred. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061," }, { "docid": "21635223", "title": "", "text": "IT IS SO ORDERED. . 25 U.S.C. § 2701 etseq. . See Kan. Stat. Ann. §§ 79-3401 etseq. . Kan. Stat. Ann. § 79-3409. . Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). . Anderson, All U.S. at 248, 106 S.Ct. 2505. . Id. at 252, 106 S.Ct. 2505. . Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hides v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). . Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). . Applied Genetics, 912 F.2d at 1241. . Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). . Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. . Id. at 251-52, 106 S.Ct. 2505. . U.S. CONST, art. I, § 8 cl. 3. . See Act for Admission of Kansas into the Union, Ch. XX, § 1, 12 Stat. 126 (1861). . U.S. CONST, amend. XI. . 4 U.S.C. §104. . The Tribe also claims jurisdiction under federal question jurisdiction, 28 U.S.C. § 1331. . 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). . Blatchford v. Native Village of Noatak, 501 U.S. 775, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991); Principality of Monaco v. Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282 (1934); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). . Ex parte Young, 209 U.S. at 155-56, 28 S.Ct. 441; see also Alden v. Maine, 527 U.S. 706, 747-48, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (affirming the continuing validity of Ex parte Young). . 521 U.S. 261, 287, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). . Id. at 264-65, 117 S.Ct. 2028. . Id. at 265, 117" }, { "docid": "23505596", "title": "", "text": "ROBINSON, District Judge. Plaintiff George Davidson sued America Online, Inc. (“AOL”) for an alleged violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101-12213. Plaintiff, who is deaf, alleges that AOL failed to hire or consider him for employment because of his disability. The United States District Court for the District of Utah granted summary judgment in favor of AOL, and plaintiff appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s decision that one of plaintiffs claims of discrimination is time-barred. On his remaining claim, however, we conclude that plaintiff made out a prima facie case of discrimination under the ADA and therefore reverse. STANDARD OF REVIEW “We review the district court’s grant of summary judgment de novo, applying the same legal standard used by the district court.” Simms v. Oklahoma ex rel. Dept. of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.) (citation omitted), cert. denied, 528 U.S. 815, 120 S.Ct. 53, 145 L.Ed.2d 46 (1999). Summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Simms, 165 F.3d at 1326 (citation omitted). The nonmovant is given “wide berth to prove a factual controversy exists.” Jeffries v. State of Kan., 147 F.3d 1220, 1228 (10th Cir.1998) (quoting Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir.1995)). BACKGROUND AOL provides online and interactive computer services. AOL maintains a Call Center in Ogden, Utah where AOL “Customer Care Consultants” handle communications to and from members, in various forms, including voice telephone, mail, email, Instant Message and text telephone services for the deaf. AOL staffs its Call Center with “voicephone” and “non-voice-phone” positions. Voicephone positions and non-voicephone positions have the same pay level, benefit level and seniority levels." }, { "docid": "23085683", "title": "", "text": "“protected conduct closely followed by adverse action may justify an inference' of retaliatory motive”) (internal quotation marks omitted). However, when a defendant articulates a reason for terminating the plaintiffs employment, establishing a prima facie case is not sufficient to avoid summary judgment. Instead, the plaintiff must offer evidence that the defendant’s reason is a pretext for discrimination. See Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1396 (10th Cir.1997) (stating that “even though a plaintiff has established a prima facie case, the defendant is entitled to summary judgment unless the plaintiff produces either direct evidence of discrimination or evidence that the defendant’s proffered reason for the action taken was pretextual”); see also Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999) (affirming grant of summary judgment to an employer because, even assuming that the plaintiff established a prima facie case, she could not prove that the proffered reason for terminating her was pretextual). We therefore turn to Ms. Selenke’s contention that the reasons given by MIC for her termination were a pretext for discrimination. When assessing a contention of pretext, we examine the facts “as they appear to the person making the decision to terminate [the] plaintiff.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir.2000); see also Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1209 (10th Cir.1999) (noting that it is the manager’s perception of the employee’s performance, and not the employee’s subjective evaluation of her performance, that is relevant in determining pretext) (internal quotation marks omitted). We may not second guess the business judgment of the employer. Simms v. Oklahoma ex rel. Dept. of Mental Health & Sustance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir.), cert. denied, 528 U.S. 815, 120 S.Ct. 53, 145 L.Ed.2d 46 (1999). Instead, the relevant question is whether the reason articulated by the employer was the real reason for the challenged action. Applying these principles, we conclude that Ms. Selenke has failed to offer evidence from which a reasonable factfinder could conclude that MIC’s reasons for terminating her employment were pretextual. Her efforts to minimize the" } ]

[ { "docid": "22420271", "title": "", "text": "is fairly implicit in the Act the duty to take whatever action is required in the interest of broad fairness and avoidance of gross inequity, although presumably his range of discretion means there may be inequities that a President may remove that he is not compelled by law to remove. This conclusion is supported by constitutional considerations and historic context. The 1942 statute on prices specifically articulated the “generally fair and equitable” standard. But the broad equity standard is inherent in a stabilization program. It was incorporated into the 1942 wage control measures providing for stabilization of wages and salaries. Fairness and equity are also furthered by the requirement (see point 10) that the Executive develop implementing standards, with deliberate criteria replacing the fortuities of a freeze. To obviate any possible misunderstanding we refer to the general principle under which the requirement of fairness takes on content in the light of what is feasible. The law does not contemplate what is manifestly impracticable, or suppose that all problems are to be taken care of at once. And so it has been held that broad emergency price control measures need not entitle each particular seller to consideration of the equity of his position, for such an obligation would impose an administrative impracticability that would defeat the very purpose of the Act. Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892 (1944). In other contexts when agencies have been given enormous regulatory tasks, the courts have interpreted the underlying statutes to take account of what is feasible. Perhaps the outstanding opinion along these lines is Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968), where the Court upheld agency action exercising an authority to provide a moratorium on requests for relief (pp. 777-781, 88 S.Ct. 1344), granting exemptions not specifically voiced in the statute (pp. 785-787, 88 S.Ct. 1344), deferring certain issues and guidelines for later consideration (p. 788, 88 S.Ct. 1344), focusing first on aggregate problems and moving on in the light of experience to more refined consideration of problems of need" } ]

[ { "docid": "8423895", "title": "", "text": "§ 211(d) in an attempt to ascertain whether there is substantial evidence to sustain the order attacked by Chrysler. If there is not sufficient evidence, Chrysler would indeed have a substantial likelihood of prevailing on the merits, and preliminary relief might be proper. We note that COLC’s September 21 Order identifies no evidence whatsoever in support thereof. We have previously approved the procedure, utilized here, of allowing a post-litigation affidavit to provide the substantial evidence needed to support a COLC order. Plumbers Local 519 v. C.I.S.C., 479 F.2d 1052 (Em.App.1973), and we consider it entirely proper in this case for the trial court to look to Dr. Dunlop’s affidavit for the requisite evidentiary support. This does not mean, however, that the requirement of substantial evidence is in any way diminished. Under examination, an affidavit may be found to supply only conclusory statements and not evidence. We are aware of Chrysler’s argument here that § 150.154(e) does not permit a determination that the total effect of an industry’s proposed price increases would be economically detrimental to provide the basis for deferring, as here, a single manufacturer’s proposed increase. While we adhere to the basic tenet that the expertise of COLC is to be given great weight in questions of interpretation of its own regulations, see University of Southern California v. Cost of Living Council, 472 F.2d 1065, 1068-1069 (Em.App.1972), this is not a carte blanche. In any event, the affidavits submitted to date do not provide a rational explanation for the deferral of Chrysler’s proposed price increase. We do not suggest that there might not be a rational basis, but observe merely that the present affidavits do not contain factual evidence to support the conclusion of economic impact inconsistent with the Economic Stabilization Program which the Commission must draw to invoke § 150.154(c). Unlike the deferral provisions common in the area of utility regulation, § 150.-154(c) does not restrict COLC as to the duration of a particular deferral; deferrals could be of potentially infinite duration. This raises serious questions as to the legality of the suspension power. Such an open-ended power" }, { "docid": "15295834", "title": "", "text": "3 Davis, Administrative Law Treatise, Chapter 20, § 20.04 (West Publishing Co. 1958) and pocket part. If the facial constitutionality of § 757 and regulations issued pursuant thereto were conceded by plaintiffs, then they would be remitted in the first instance to seeking administrative relief from the regulations. 10 C.F.R. Subparts D & E, § 205.50 and § 205.70. Davis, op. cit. Plaintiffs assert that, on this point, this is a “case of first impression,” distinguishing Griffin v. United States (Em.App.1976) 537 F.2d 1130, as involving old oil and Condor Operating Co. v. Sawhill (Em.App.1975) 514 F.2d 351, as involving only the purchaser-supplier freeze rule, and Consumers Union v. Sawhill (Em.App.1975) 525 F.2d 1068, as upholding as a temporary measure the upper-tier of the two-tier system under the original Allocation Act of 1973 without the amendments of the Energy Policy Act. Noting that much of the jurisprudence in “permanent” market price control concerns public utilities, the plaintiffs rely primarily upon the Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312, reh. den., 392 U.S. 917, 88 S.Ct. 2050, 20 L.Ed.2d 1379, involving the Natural Gas Act, 15 U.S.C. § 717 (1968). In this connection, as stated above, plaintiffs argue that the Allocation Act as amended by § 757 establishes a “permanent ” scheme of comprehensive market regulation without a required non-confiscatory standard of price control. The fact of permanence is said to be established by the affidavits of Robert E. Thomas, Chief Executive Officer of Mapco, and plaintiff T. A. Manhart, the admissibility and relevance of which is challenged by defendants. Plaintiffs argue that § 757 of the Allocation Act compels the crude oil producer to serve the public and deprives him of the right to withdraw from the market to avoid regulation, in contrast to the regulations sustained in Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892 (1944). The First Fifth Amendment Question Defendants’ Argument Defendants contend that the permanence of the current system on which plaintiffs’ arguments are based is conclusively absent, citing the direction to the President “to" }, { "docid": "8372276", "title": "", "text": "Local 519 and other craft unions in the area. Dr. Dunlop also specifically referred to CISC’s having considered the increases’ possible justifiability on the basis of increased productivity. The Committee’s allowance of two $.40 increases implicitly recognized that Local 519’s contract partially complied with the standards of § 203(b). This type of judgment, involving the balancing of interrelated economic factors, is peculiarly within the scope of the expertise with which CISC is presumptively endowed. This court has repeatedly held that great deference should be given to the expertise of the economic stabilization agencies. See United States v. Lieb, 462 F.2d 1161 (TECA 1972); University of Southern California v. Cost of Living Council, 472 F.2d 1065 (TECA 1972). This policy is particularly appropriate where, as here, the administrative judgment is of a technical nature and no flaw in the exercise of its expertise has been pointed out. It is, therefore, concluded that the Government adequately demonstrated that the proposed increases would have violated the totality of the § 203(b) standards, and that the two adjustments which were permitted, constituted the maximum which were justifiable on that basis. With respect to the validity of these increases in the light of § 203(c)(3), we find no error in the district court’s determination. To support its claim that contractors had raised their bids in anticipation of higher wages, Local 519 submitted affidavits to that effect from two contractors. But the action, of. two firms in a large industry does not compel the conclusion that their practice is the general rule. Local 519 also submitted 151 affidavits executed by its members on forms prepared by the Union testifying to substantial increases in productivity through the introduction of new methods and materials. It was not an abuse of its discretion for CISC to ignore these self-serving documents. In the absence of an independent evidence of the alleged increased productivity of these workers, the Union failed to satisfy its burden of proving that these wage increases were justified under § 203<c) (3). The judgment of the District Court is affirmed. . Appellant’s first contention is that the" }, { "docid": "22280000", "title": "", "text": "Living Council.” 342 F.Supp. at 607-608, 609. III. SCOPE OF REVIEW The Executive Order of August 15 left the Cost of Living Council (and by its delegation the Office of Emergency Preparedness) with a “gargantuan” task. In delegating to the agencies the duty to develop the very definitions of the words used in the Order, the broadest possible delegation of power was given. As this court recently stated in United States v. Lieb, 462 F.2d 1161 (Em.App., 1972): The President has made the broadest delegation of power to the Council, allowing it to use its own discretion as to the best means of achieving the purposes of the Executive Order, which are “to stabilize the economy, reduce inflation, and minimize unemployment [by stabilizing] prices, rents, wages, and salaries.” (462 F.2d at 1166, emphasis supplied). It is a well settled principle that the courts place great weight on the interpretations given to statutes and regulations by those agencies charged with the responsibility of administering them. See, e. g., Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965), and the cases cited therein. This “great deference test,” analyzed thoroughly by both parties to this lawsuit and specifically recognized by this court in Lieb, is particularly appropriate when, as here, the administrative practice at stake “involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.” Power Reactor Development Co. v. Int. Union of Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924 (1961). We can propound no situation more compelling for the application of the “great deference test” than that presently before us. Only the barest foundation has been laid by the Executive Order — the definitions of such key words as “prices,” “rents,” “salaries,” “su'b- stantial volume,” “commodities,” “services,” and, yes, “actual transactions,” have been left to the CLC and the OEP." }, { "docid": "662348", "title": "", "text": "competing interests. See e. g., Cafeteria and Restaurant Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Accordingly, the FEA stresses that we are dealing here with regulations and decisions implementing an emergency statute passed by Congress to deal with the serious energy problems confronting the nation. The FEA argues that a series of decisions from TECA indicate that in the context of the broad based Economic Stabilization Program, agency action taken pursuant to the ESA is not subject to the strict procedural due process requirements of notice and full adversary hearing. See Carpenters 46 et al. v. Construction Industry Stabilization Committee (CISC), 522 F.2d 637 (Em.App.1975); Plumbers Local Union No. 519 et al. v. Construction Industry Stabilization Committee, 479 F.2d 1052, 1055 (Em.App.1973); Western States Meat Packers Ass’n v. Dunlop, 482 F.2d 1401 (Em.App.1973). Indeed the FEA notes that section 207 of the ESA specifically exempts agency action from many provisions of the Administrative Procedure Act, including 5 U.S.C. § 556 regarding the conduct and rights of participants to administrative hearings. In Carpenters 46, a leading case in this area, the defendant Construction Industry Stabilization Committee, established by the President pursuant to the ESA to approve all proposed wage and salary increases in the construction industry, reduced certain wage increases that the union had negotiated for in their collective bargaining agreement. The union, thus, sought declaratory and injunctive relief that the CISC’s action was unlawful and unconstitutional. Upon motions for summary judgment in this court, Judge Zirpoli determined all matters in controversy against the union except a procedural due process claim which he certified to TECA. Although, actually ruling that the case was moot, TECA made a special point to indicate “the tenuous nature of [its] jurisdiction based upon certification of what appeared] to be an insubstantial constitutional issue.” 522 F.2d at 637. The court continued, Plaintiffs would assert that the non-adversary nature of the administrative hearing held by CISC in their case denied them their constitutional right of “procedural due process.” However, this Court has previously recognized the important distinction of agency determinations under" }, { "docid": "2007953", "title": "", "text": "federal question is presented as to the Multiple Dwelling Law. Plaintiff contends that the State rent control enabling Act and Local Law 20 which continues rent control in New York City violate the following of her constitutional rights: Due process of Law (XIV Amendment, U.S. Constitution, Article I, § 6, N.Y. Constitution); equal protection of the laws (XIV Amendment, U.S. Constitution, Article I, § 11, N.Y. Constitution) ; taking property without compensation (Article I, § 7, N.Y. Constitution) ; impairment of obligations of contract (Article I, § 10, U.S. Constitution). In addition, plaintiff invokes the Civil Rights statutes (18 U.S.C. § 242; 28 U.S.C. § 1343; 42 U.S.C. § 1983). No other grounds for federal jurisdiction are alleged. The constitutionality of the Rent Control Statute is well settled. The statute does not violate due process (Bowles v. Willingham, 321 U.S. 503, 517, 64 S.Ct. 641, 88 L.Ed. 892 (1944)); equal protection (Woods v. Cloyd W. Miller Co., 333 U.S. 138, 145, 68 S.Ct. 421, 92 L.Ed. 596 (1948)); taking of property without compensation (Teeval Co. v. Stern, 301 N.Y. 346, 362, 93 N.E. 2d 884, cert. den. 340 U.S. 876, 71 S.Ct. 124, 95 L.Ed. 637 (1950)); impairment of contract rights (Marcus Brown Holding Co. v. Feldman, 256 U.S. 170, 198, 41 S.Ct. 465, 65 L.Ed. 877 (1920) ); see generally, Lincoln Building Associates v. Barr, 1 N.Y.2d 413, 153 N.Y.S.2d 633, 135 N.E.2d 801 (1956), appeal dismissed for want of substantial federal question, 355 U.S. 12, 78 S.Ct. 12, 2 L.Ed.2d 20 (1957). No substantial federal question is presented as to the continuation of the emergency giving rise to rent control legislation. The determination to that effect by the City Council, dated March 17, 1967, is not without basis in fact, nor is it arbitrary. Insofar as the plaintiff seeks relief under the civil rights statutes from any government body or agency, the claim is barred. (Fisher v. City of New York, 312 F.2d 890 (2d Cir.), cert. den., 374 U.S. 828, 83 S.Ct. 1866, 10 L.Ed.2d 1051 (1963)). Further, the allegations concerning violation of the civil rights statutes" }, { "docid": "8596516", "title": "", "text": "University of Notre Dame Du Lac, T.E.C.A., 484 F.2d 501 (1973); Oakland Raiders v. Office of Emergency Preparedness, N.D.Calif. (No. C-71-2213, Jan. 2, 1974), appeal docketed, T.E.C.A. No. 9-11 (March 21, 1974); and cf. Murphy v. O’Brien, T.E.C.A., 485 F.2d 671 (1973). Broader reliance has come to be placed upon a more general aspect of USC, namely, the opinion’s analysis and application of the “great deference test” in the context of economic controls administration. USC, supra, pp. 1068-1069. See United States v. IBEW Local 11, T.E.C.A., 475 F.2d 1204, 1209 (1973); Plumbers Local 519 v. Construction Industry Stabilization Committee, T.E.C.A., 479 F.2d 1052, 1056 (1973); Baldwin County Electric Membership Corp. v. Price Commission, T.E.C.A., 481 F.2d 920, 923, cert. denied, 414 U.S. 909, 94 S.Ct. 230, 38 L.Ed.2d 147 (1973); Pacific Coast Meat Jobbers Association, Inc. v. Cost of Living Council, T.E.C.A., 481 F.2d 1388, 1392 (1973); Murphy v. O’Brien, supra, p. 674; City of Groton v. Federal Power Commission, T.E.C.A., 487 F.2d 927, 934 (1973); United States v. Ohio, T.E.C.A., 487 F.2d 936, 941 (1973), cert. granted, 415 U.S. 912, 94 S.Ct. 1406, 39 L.Ed.2d 466 (Feb. 19, 1974). See also, United States v. Lieb, T.E.C.A., 462 F.2d 1161, 1166 (1972), decided prior to USC. In arguing that Meat Cutters and USC were wrongly decided, the Falcons offer five contentions which form the principal issues common to all three cases now under consideration: (1) Properly interpreted, Executive Order 11615 does not forbid these price increases; (2) The Economic Stabilization Act of 1970, as it existed during Phase I, represents an unconstitutional delegation of legislative authority to the executive branch of the Government; (3) Executive Order 11615 violated § 202(b) of the Economic Stabilization Act; (4) Executive Order 11615 and the regulations issued thereunder violated § 553 of the Administrative Procedure Act; and (5) The application of Executive Order 11615 to forbid these price increases represents (a) an unconstitutional bill of attainder or ex post facto law; (b) an unconstitutional taking of property without just compensation; and (c) an unconstitutional deprivation of due process of law. No. 5-6 raises a" }, { "docid": "8372275", "title": "", "text": "future it will do so, but nonetheless, in the case at bar, the evidence relevant to the § 203(b) standards so clearly supports CISC’s conclusion as to make its terse disposition self-explanatory. Dr. Dunlop’s post-litigation affidavit was merely expository of the Committee’s obvious, although implicit findings, and the District Court therefore properly accepted and used it. The Union asserts that by virtue of § 203(b)(3), CISC was required specifically to find that there had been no increase in productivity before it could withdraw this contract from within the scope of § 203(c)(1) and (2). But § 203(b)(3) comprises only part of the overall standards to which § 203(c)(1) and (2) refer. The basic rule of § 203(b) is that wages and prices should be “consistent with the purposes of [the Act] and orderly economic growth.” The data included in Dr. Dunlop’s affidavit, nowhere disputed by the Union, resoundingly supports the conclusion that the proposed wages would have prevented the stabilization of construction industry wages and prices in southern Florida and shattered the historical relationship between Local 519 and other craft unions in the area. Dr. Dunlop also specifically referred to CISC’s having considered the increases’ possible justifiability on the basis of increased productivity. The Committee’s allowance of two $.40 increases implicitly recognized that Local 519’s contract partially complied with the standards of § 203(b). This type of judgment, involving the balancing of interrelated economic factors, is peculiarly within the scope of the expertise with which CISC is presumptively endowed. This court has repeatedly held that great deference should be given to the expertise of the economic stabilization agencies. See United States v. Lieb, 462 F.2d 1161 (TECA 1972); University of Southern California v. Cost of Living Council, 472 F.2d 1065 (TECA 1972). This policy is particularly appropriate where, as here, the administrative judgment is of a technical nature and no flaw in the exercise of its expertise has been pointed out. It is, therefore, concluded that the Government adequately demonstrated that the proposed increases would have violated the totality of the § 203(b) standards, and that the two adjustments which" }, { "docid": "6564159", "title": "", "text": "stabilization program was to halt inflation which had infected and was damaging the national economy. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, v. John B. Connally, et al. (D.D.C.1971) 337 F.Supp. 737, 750. If each party whose request for a wage increase was denied could circumvent the decisions by requiring monies to be paid in escrow, the integrity of the stabilization program would be seriously undermined. An escrow account would insure the creation of a sum of excess funds which, upon payment, could ad versely affect the inflationary trends as soon as the controls were lifted. It is beyond dispute that in light of Pay Board Rulings No. 34 and No. 125, the appellant and other parties to the escrow agreements paid and received a portion of the wage increase that had not been approved by CISC. This resulted in the violation of 6 C.F.R. 201.17 (6 C.F.R. 201.41). Moreover, CISC has interpreted the Ruling to preclude the creation or continuance of escrow accounts after a decision has been rendered. This interpretation was communicated to the parties by a letter dated August 2, 1972. Great deference is to be accorded to the interpretation of regulations and rulings issued by the administrative body. University of Southern California v. Cost of Living Council et al. (Em.App., 1972), 472 F.2d 1065, cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973); United States v. Lieb (Em.App., 1972), 462 F.2d 1161. Appellant’s argument that the language in the “Memorandum of Understanding” to the effect that the money will be released from escrow “at such times as they may legally do so” is no justification for its conduct. Appellant’s demand on the contractor employers and the placement of wages in the escrow accounts did not occur until after CISC had already failed to approve the $.71 increase and, in fact, had disapproved it. The matter was no longer pending before CISC for approval when the escrows began. Appellant’s contention that the CISC had not finally acted upon the wage increase in question when the escrows began is without merit. Nor" }, { "docid": "8372269", "title": "", "text": "the application, prompting the Union to resubmit it with various supporting affidavits and a brief. CISC heard oral argument on April 13 and four days later reaffirmed its original decision, but authorized a $.40 increase. The Committee in the same notice informed the Union that the increase scheduled for April 16 had also been disapproved, but it subsequently granted instead, an increase of $.40. Local 519 commenced this action on May 19, seeking an order declaring both of the original, negotiated increases valid under the Economic Stabilization Act of 1970, as amended (the Act). At the same time, the Union wrote to all the contractors who were parties to the 1970 agreement, demanding that money to cover both increases in full be put in escrow pending judicial review of CISC’s decision. CISC immediately objected to this proposal, and cited its policy against such escrows, see 6 C.F.R. § 201.41(c)(4); Pay Board Ruling 1972-125, 37 Fed.Reg. 26708 (1972); Ray Board Ruling 1972-34, 37 Fed.Reg. 9350 (1972). On June 6 the Union proposed instead an escrow account for only the $.80 in approved increases and this was accepted by PIP. On August 22, however, the appellant moved for a preliminary injunction to prevent the Committee from interfering with an escrow agreement for the full $2.15. The preliminary injunction was denied on October 13, D.C. 350 F.Supp. 6. Cross-motions for summary judgment ensued. On December 29 the District Court granted the Government’s motion and denied the Union’s. This appeal followed. CISC was the first body established by the President under the Act. It was created on April 3, 1971 by Executive Order 11588, “to effectuate the stabilization of wages and prices consistent with and in furtherance of effective collective bargaining in the [construction] industry.” Its existence and function have been repeatedly reaffirmed by the President during the various phases of the economic stabilization program, see Executive Orders 11695 (§ 5), 11640 (§ 15) and 11627 (§ 14). Every wage increase in the construction industry must be approved by either CISC or one of its craft dispute boards before it may legally be put" }, { "docid": "9628883", "title": "", "text": "heretofore been questioned in this court. On the contrary it has met with judicial approval and has been assumed by us to be correct. We conclude that the Emergency Price Control Act authorizes the Administrator to control the rent of the complainant’s garage in connection with that of her rented dwelling house when the garage is rented for use in connection with the dwelling house. The complainant next objects to the determination that the increase in the rental value of her house by reason of the addition of garage service was not more than 50‡ per week. She asserts that in making this determination the Administrator was guilty of arbitrary and capricious action. There is no merit in this contention. The question was purely a factual one as to which the Administrator’s determination, if supported by substantial evidence, is not reviewable by this court. Rabkin v. Bowles, Em.App., 1944, 143 F.2d 600. An examination of the record shows that there was substantial evidence to support the finding. Accordingly we cannot hold that it was erroneous. The complainant’s contentions with respect to the invalidity of the Act are equally without merit. All of them have been heretofore considered and rejected. See Bowles v. Willingham, 1944, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892; Taylor v. Brown, Em.App., 1943, 137 F.2d 655, certiorari denied 320 U.S. 787, 64 S.Ct. 194, 88 L.Ed. 473; Wilson v. Brown, Em.App., 1943, 137 F.2d 348. It will, therefore, serve no useful purpose to discuss them here. Finally, the complainant contends that the regulations denied her the opportunity to present witnesses and to confront and cross-examine the Administrator’s witnesses. The fact is, however, that Revised Procedural Regulation No. 3, which governs protest proceedings in rent cases, does provide in Section 1300.228 for oral hearings at which testimony may be taken where a protestant requests it and shows why the filing of written evidence will not permit the fair and expeditious determination of the protest. In the present case the complainant did not request such an oral hearing. She, therefore, has no standing to object that it" }, { "docid": "8372277", "title": "", "text": "were permitted, constituted the maximum which were justifiable on that basis. With respect to the validity of these increases in the light of § 203(c)(3), we find no error in the district court’s determination. To support its claim that contractors had raised their bids in anticipation of higher wages, Local 519 submitted affidavits to that effect from two contractors. But the action, of. two firms in a large industry does not compel the conclusion that their practice is the general rule. Local 519 also submitted 151 affidavits executed by its members on forms prepared by the Union testifying to substantial increases in productivity through the introduction of new methods and materials. It was not an abuse of its discretion for CISC to ignore these self-serving documents. In the absence of an independent evidence of the alleged increased productivity of these workers, the Union failed to satisfy its burden of proving that these wage increases were justified under § 203<c) (3). The judgment of the District Court is affirmed. . Appellant’s first contention is that the District Court erred by its denial of preliminary relief. However, the disposition of this case on the merits renders this issue moot. Moreover, this court has just recently approved the policy prohibiting escrows which Local 519 challenged, United States v. I.B.E.W., Local No. 11, TECA, 475 F.2d 1204 (1973). Local 519 also seeks for us to review the District Court’s denial of its motion to compel answers to certain interrogatories. The Union, however, concedes that this “is merely ancillary to its appeal on the merits” and it specifically waves any claim for a remand for additional discovery. It is, therefore, actually seeking an advisory opinion, which is beyond the power of the court. St. Pierre v. United States, 319 U.S. 41, 42, 63 S.Ct. 910, 87 L.Ed. 1199 (1943). . Section 203(b) provides that: “In carrying out the authority vested in him by subsection (a), the President shall issue standards to serve as a guide for determining levels of wages, salaries, prices, rents, interest rates, corporate dividends, and similar transfers which are consistent with the" }, { "docid": "6564160", "title": "", "text": "was communicated to the parties by a letter dated August 2, 1972. Great deference is to be accorded to the interpretation of regulations and rulings issued by the administrative body. University of Southern California v. Cost of Living Council et al. (Em.App., 1972), 472 F.2d 1065, cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973); United States v. Lieb (Em.App., 1972), 462 F.2d 1161. Appellant’s argument that the language in the “Memorandum of Understanding” to the effect that the money will be released from escrow “at such times as they may legally do so” is no justification for its conduct. Appellant’s demand on the contractor employers and the placement of wages in the escrow accounts did not occur until after CISC had already failed to approve the $.71 increase and, in fact, had disapproved it. The matter was no longer pending before CISC for approval when the escrows began. Appellant’s contention that the CISC had not finally acted upon the wage increase in question when the escrows began is without merit. Nor is there merit to appellant’s speculative contention that the Pay Board or the Congress may in the future authorize payment of the unapproved portion of the wage increase. The judgment is affirmed. . On November 23, 1972, the Pay Board regulations found in Title 6 of the Code of Federal Regulations were recodified with the result that some citations used in the District Court have changed since that time. Citations to the regulations used in the District Court will - appear first, with the citations to the new codification, if any, appearing afterwards in parentheses. . 6 C.F.R. 201.41 (37 F.R. 24960, November 23, 1972) of the Pay Board regulations provides in pertinent part: (a) In general. Except as provided in paragraph (b) of this section, it shall be a violation of the provisions of this chapter, subject to the sanctions, fines, penalties, and other relief provided in the Act, for any person to— (1) Payment. Pay, directly or indirectly, immediately or on a deferred basis, any portion of a wage and salary increase not" }, { "docid": "8596530", "title": "", "text": "other district courts have reached the same result. The exhaustive and learned opinion by Judge Leventhal in Meat Cutters has been favorably cited by this court on several occasions. See United States v. Lieb, supra, 462 F.2d at 1165; USC, supra, 472 F.2d at 1070; IBEW Local 11 v. Boldt, T.E.C.A., 481 F.2d 1392, 1395, cert. denied, 414 U.S. 1092, 94 S.Ct. 723, 38 L.Ed.2d 549 (1973). It appears, however, that this is the first occasion upon which our court has been called to directly decide the delegation question. This likely is due in part to the fact that the 1971 Amendments appear to have eliminated any doubt as to the Act’s validity under Article I of the Constitution. We are in substantial agreement with the reasoning of Meat Cutters, and concur in the result there reached. It would serve only to unduly prolong this opinion were we to further elaborate our views on this subject. Accordingly, on the authority of. Meat Cutters, we hold that the Economic Stabilization Act of 1970, as it existed on August 15, 1971, was not an unconstitutional delegation of legislative power to the President. 8. Did Executive Order 11615 violate § 202(b) of the Economic Stabilization Act? As originally enacted on August 15, 1970, the Economic Stabilization Act did not restrict the President’s authority to institute selective economic controls. Accordingly, on March 29,1971, the President issued Executive Order 11588, 36 Fed.Reg. 6339, which provided for the stabilization of wages and prices in a single industry (the construction industry). Less than two months later, Congress amended § 202 of the 1970 Act to add the following provision: “(b) The authority conferred on the President by this section shall not be exercised with respect to a particular industry or segment of the economy unless the President determines, after taking into account the seasonal nature of employment, the rate of employment or underemployment, and other mitigating factors, that prices or wages in that industry or segment of the economy have increased at a rate which is grossly disproportionate to the rate at which prices or wages have" }, { "docid": "8372268", "title": "", "text": "ANDERSON, Judge: Plumbers Local Union 519, the recognized bargaining agent for approximately 1,000 plumbers in Dade County, Florida, appeals from a judgment of the United States District Court for the Southern District of Florida, denying it relief from rulings by the Construction Industry Stabilization Committee (CISC) which substantially reduced two negotiated wage increases. We affirm. In 1970, Local 519 and Plumbing Industry Program, Inc. (PIP), the representative of the plumbing contractors in Dade County, negotiated a labor contract for the period from April 16, 1970 to April 15, 1973. This contract included hourly wage and fringe benefit increases of $1.50 and $.65 on October 16, 1971 and April 16, 1972, respectively. Because of the wage freeze during Phase I of the President’s economic stabilization program (see Executive Order 11615) the increase scheduled for October 16th was not put into effect. In January 1972, after the institution of Phase II (see Executive Order 11695) the Union applied to CISC for approval of the retroactive payment of the frozen wages. On February 25 the Committee summarily disapproved the application, prompting the Union to resubmit it with various supporting affidavits and a brief. CISC heard oral argument on April 13 and four days later reaffirmed its original decision, but authorized a $.40 increase. The Committee in the same notice informed the Union that the increase scheduled for April 16 had also been disapproved, but it subsequently granted instead, an increase of $.40. Local 519 commenced this action on May 19, seeking an order declaring both of the original, negotiated increases valid under the Economic Stabilization Act of 1970, as amended (the Act). At the same time, the Union wrote to all the contractors who were parties to the 1970 agreement, demanding that money to cover both increases in full be put in escrow pending judicial review of CISC’s decision. CISC immediately objected to this proposal, and cited its policy against such escrows, see 6 C.F.R. § 201.41(c)(4); Pay Board Ruling 1972-125, 37 Fed.Reg. 26708 (1972); Ray Board Ruling 1972-34, 37 Fed.Reg. 9350 (1972). On June 6 the Union proposed instead an escrow account" }, { "docid": "15295840", "title": "", "text": "evaluated by the finder of the facts, an affidavit containing admissible opinion evidence in support of a motion for summary judgment is not conclusive. Sartor v. Arkansas National Gas Corporation, 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944). The affidavits relied on by plaintiffs are not admissible to contradict the clear statutory provisions, and, if admissible, are not persuasive or conclusive. So, under the current established factual and legal circumstances, cases involving the Natural Gas Act, such as the Permian Basin Area Rate Cases, supra, are not applicable as determined in Consumers Union of U. S., Inc. v. Sawhill (Em.App.1975), supra, 525 F.2d 1068, l.c. 1080. In this connection, we note that no law made by humans is “permanent.” At the most, the duration is indefinite and subject to change. Second, plaintiffs erroneously contend that the Allocation Act, and § 757 added by the Energy Policy Act, deprive the plaintiffs of the right to withdraw from the market. No authority is cited for this contention. Only the effect of unidentified private contractual agreements are mentioned. These agreements, if any, made by plaintiffs were made voluntarily at the risk of the parties and cannot be the basis of a finding of facial unconstitutionality of § 757. Third, plaintiffs’ remaining contentions are untenable under Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892 (1944), and Condor Operating Company v. Sawhill (Em.App.1975), supra, 514 F.2d 351, l.c. 359-362. As stated in Bowles v. Willingham, supra, “[o]f course, price control, the same as other forms of regulation, may reduce the value of the property regulated. But, as we have pointed out in the Hope Natural Gas Co. case, . . . that does not mean that the regulation is unconstitutional.” Further, there has been no unconstitutional taking of plaintiffs’ property for public use under the two-tier price controls. Griffin v. United States (Em.App.1976) 537 F.2d 1130, l.c. 1139-1140; Cf. Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892 (1944). The first Fifth Amendment question is, therefore, resolved in favor of the defendants. THE SECOND FIFTH AMENDMENT" }, { "docid": "8596529", "title": "", "text": "was not “plainly erroneous or inconsistent” with Executive Order 11615. Accordingly, we hold once again ' that such ticket price increases violated the Executive Order. 2. Was the 1970 Act an unconstitutional delegation of legislative power? Relying upon A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935), and Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935), the Falcons urge that the 1970 Act is void as representing an unconstitutional delegation of legislative power to the President. It is conceded that subsequent to Scheehter, no federal statute has been held unconstitutional by the Supreme Court on that basis. Among the statutes to survive a delegation challenge was the Emergency Price Control Act of 1942. Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944). In Amalgamated Meat Cutters & Butcher Workmen v. Connally, D.D.C., 337 F.Supp. 737 (1971), supra, a three-judge district court upheld the 1970 Act in the face of a delegation challenge. Several other district courts have reached the same result. The exhaustive and learned opinion by Judge Leventhal in Meat Cutters has been favorably cited by this court on several occasions. See United States v. Lieb, supra, 462 F.2d at 1165; USC, supra, 472 F.2d at 1070; IBEW Local 11 v. Boldt, T.E.C.A., 481 F.2d 1392, 1395, cert. denied, 414 U.S. 1092, 94 S.Ct. 723, 38 L.Ed.2d 549 (1973). It appears, however, that this is the first occasion upon which our court has been called to directly decide the delegation question. This likely is due in part to the fact that the 1971 Amendments appear to have eliminated any doubt as to the Act’s validity under Article I of the Constitution. We are in substantial agreement with the reasoning of Meat Cutters, and concur in the result there reached. It would serve only to unduly prolong this opinion were we to further elaborate our views on this subject. Accordingly, on the authority of. Meat Cutters, we hold that the Economic Stabilization Act of 1970, as it existed" }, { "docid": "23447250", "title": "", "text": "are not unconstitutional when general regulations are necessary to accomplish an appropriate congressional purpose. Bowles v. Willing-ham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892 (1944), supra. Wilson v. Brown, 137 F.2d 348 (Em.App.1943). In determining the validity of the stabilization authority granted the President under the Economic Stabilization Act, the three-judge court in Amalgamated Meat Cutters & Butcher Work. v. Connally, 337 F.Supp. 737, 754 (D.D.C.1971), noted the relevance of the time frame imposed upon that Act. See Fry v. United States, 421 U.S. 542, 95 S.Ct. 1792, 1796, 44 L.Ed.2d 363 (1975). This court has recognized time restraints on the Allocation Act. In Condor Operating Co. v. Sawhill, supra, at p. 362, this court said: Essential powers of government to meet this or other crises in perilous times would be frustrated by the adoption of an excessively rigid and unprecedented construction inhospitable to broad realities. “A limit in time, to tide over a passing trouble, well may justify a law that could not be upheld as a permanent change.” Block v. Hirsh, 256 U.S. 135, 157, 41 S.Ct. 458, 460, 65 L.Ed. 865 (1921) . . Whether the challenged regulation and enforcement order would pass muster as a long continuing response to chronic energy problems need not be decided. Further, it is well established that a regulatory scheme will not constitute a tax within the meaning of Article I, Section 8, Clause 1 of the Constitution, unless the real purpose and effect of the statute and regulations promulgated thereunder is to raise revenues for the general support of the government. Head Money Cases (Edye v. Robertson), 112 U.S. 580, 595, 5 S.Ct. 247, 28 L.Ed. 798, 803 (1884); Moon v. Freeman, 379 F.2d 382, 391 (9th Cir. 1967); United States v. Stangland, 242 F.2d 843, 848 (7th Cir. 1957); Rodgers v. United States, 138 F.2d 992, 995 (6th Cir. 1943). As the court stated in Rodgers v. United States, supra, at p. 994: The test to be applied is to view the objects and purposes of the statute as a whole and if from such examination it" }, { "docid": "15295841", "title": "", "text": "are mentioned. These agreements, if any, made by plaintiffs were made voluntarily at the risk of the parties and cannot be the basis of a finding of facial unconstitutionality of § 757. Third, plaintiffs’ remaining contentions are untenable under Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892 (1944), and Condor Operating Company v. Sawhill (Em.App.1975), supra, 514 F.2d 351, l.c. 359-362. As stated in Bowles v. Willingham, supra, “[o]f course, price control, the same as other forms of regulation, may reduce the value of the property regulated. But, as we have pointed out in the Hope Natural Gas Co. case, . . . that does not mean that the regulation is unconstitutional.” Further, there has been no unconstitutional taking of plaintiffs’ property for public use under the two-tier price controls. Griffin v. United States (Em.App.1976) 537 F.2d 1130, l.c. 1139-1140; Cf. Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892 (1944). The first Fifth Amendment question is, therefore, resolved in favor of the defendants. THE SECOND FIFTH AMENDMENT QUESTION Plaintiffs’ Argument In their second Fifth Amendment contention, plaintiffs contend that the mandate of § 757 violates the Fifth Amendment because it does not have a real and substantial relation to the legislative object, which is the control of inflation. Plaintiffs rely upon an affidavit of David A. Huettner, Ph.D., an economist, Director of Energy Programs, Center for Economic and Management Research, University of Oklahoma. Dr. Huettner’s affidavit (Exhibit B, R. 162-177) consists of an essay containing speculative, inadmissible conclusions and opinions, including the primary opinion that § 757 will have an “extremely small and short lived deflationary impact on oil product prices . . .” (R. 170). The dominant theme of the opinion is that § 757 will reduce oil stock dividend income. In support of this second Fifth Amendment contention, plaintiffs cite only Nebbia v. New York, 291 U.S. 502, l.c. 525, 54 S.Ct. 505, l.c. 511, 78 L.Ed. 940, l.c. 949, 950 (1934). The Second Fifth Amendment Question Defendants’ Argument Defendants state that, in the district court, plaintiffs conceded that the" }, { "docid": "5427913", "title": "", "text": "of the Economic Stabilization Act of 1970 has unlawfully de prived them of the wage increases to which they are entitled without a proper hearing, and is thus a violation of due process under the Fifth and Fourteenth Amendments. Petitioners’ reliance upon the Fourteenth Amendment is obviously misplaced and worthy of no comment except to note that it applies only to the States and not the Federal Government. Turning to the Fifth Amendment, it is undeniable that while it does forbid the taking of property or the deprivation of it without due process, the prohibition refers only to direct appropriation of an individual’s property. Laycock v. Kenney, 270 F.2d 580, 592 (9th Cir. 1959), cert. denied, 361 U.S. 933, 80 S.Ct. 373, 4 L.Ed.2d 355 (1960). Here there has been no direct appropriation of Petitioners’ property by the Government. Any hardship caused Petitioners by the Economic Stabilization Act of 1970 is not prohibited by the Fifth [or Fourteenth] Amendments which have “never been supposed to have any bearing upon or to inhibit laws that indirectly work harm and loss to individuals.” Knox v. Lee, 79 U.S. 457, 551, 20 L.Ed. 287 (1870). Even if there had been here a direct appropriation of Petitioners’ property by the Government, it is well settled that one may be deprived of property by summary Federal Administrative action taken without a hearing when such action is essential to protect a vital governmental interest. Ewing v. Mytinger & Casselberry Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030 (1947); Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892 (1944). There can be no question that the Government’s efforts in fighting inflation and stabilizing the economy are obviously directed to the protection and preservation of a most important governmental interest that can surely be characterized as vital to the lives and fortunes of the citizens of the United States, since there is no doubt that a stable economy free of runaway inflation is a basic foundation for stable government, essential" } ]

[ { "docid": "7710351", "title": "", "text": "201, 380; Cooley on Torts, 471; Livingston v. Jefferson, 15 Fed. Cas. 660, No. 8,411; McKenna v. Fisk, 1 How. 241, 11 L. Ed. 117; Ellenwood v. Marietta Chair Co., 158 U. S. 105, 15 Sup. Ct. 771, 39 L. Ed. 913. The operation of this common-law rule has been much restricted by legislation in England (British South Africa Co. v. Compania de Mocambigue [1893] App. Cas. 602), and in some of the slates (15 Fed. Cas. 665 note, Genin v. Grier, 10 Ohio, 209, 214). There are some states in which the rule never prevailed. Holmes v. Barclay, 4 La. Ann. 63. The matter is essentially one of state policy or local law. As was said by Mr. Justice Gray in Huntington v. Attrill, 146 U. S. 657, 669, 13 Sup. Ct. 224, 228 (36 L. Ed. 1123): ‘Whether actions to recover pecuniary damage for trespass to real estate * * * are purely local or may be brought abroad depends upon the question whether they are viewed as relating to the real estate or only as affording a personal remedy. * * * And whether an action for trespass to land in one state can be brought in another state depends on the view which the latter state takes of the nature of the action.’ In Minnesota an action for pecuniary damages for trespass to real estate in another state is viewed not as relating to the real estate, but only as affording a personal remedy. It is there deemed to be transitory in nature, and not local. In Little v. Chicago, etc., Ry. Co., 65 Minn. 48, 67 N. W. 846, 33 L. R. A. 423, 60 Am. St. Rep. 421, the Supreme Court of that state in sustaining the jurisdiction of the courts of the state over an action brought to recover damages for injuries to real estate situated in Wisconsin said: ‘The reparation is purely personal and for damages. Such an action is purely personal, and in no sense real.’ ” And again: “This act ion presents a controversy between citizens of different states, and" } ]

[ { "docid": "12494309", "title": "", "text": "of the state where the land is located (Hayes v. Gulf Oil Corp., 821 F.2d 285, 287 (5th Cir.1987)). Even though Wright, Miller and Cooper, id. at 206 says “[i]t is not clear whether the distinction between local and transitory actions runs to the jurisdiction or the venue of the federal court,” this Court agrees with Hayes, 821 F.2d at 290-91 that the limitation is truly jurisdictional. To hold, that the limitation is merely one of venue and hence waivable would place this Court in the untenable position of purporting to affect real estate title records in Wisconsin, purporting to require local officials there (over whom this Court clearly has no jurisdiction) to conduct a foreclosure sale or record its results — and it is scarcely necessary to extend the list of intolerable consequences. Although the choice makes no difference in the ultimate result, this Court has (as suggested by 15 Wright, Miller & Cooper § 3822, at 207 & n. 22) proceeded on the basis that characterization of an action as local or transitory is a matter of federal rather than state law. That view harks back to the decision of Chief Justice John Marshall, sitting on Circuit in the famous case of Livingston v. Jefferson, 15 F. Cas. 660, 665 (C.C.D.Va.1811) (No. 8411). Even though that is the clear thrust of Chief Justice Marshall’s statement in Livingston, a misreading of his opinion in a later Supreme Court (!) dictum, Huntington v. Attrill, 146 U.S. 657, 669-70, 13 S.Ct. 224, 228-29, 36 L.Ed. 1123 (1892) has caused a number of courts to look to state law instead (see the discussion of this subject in Hayes, 821 F.2d at 287-88). But as already stated, that makes not the slightest difference here. Even if this Court were required to look to the law of the forum in determining jurisdiction, the result would be identical. It has been established law in Illinois for nearly a century and a half that an action pertaining to lands that is “local” (in the legal sense) in its nature must be brought within the jurisdiction where" }, { "docid": "12295202", "title": "", "text": "claims to land located outside the state in which the court sits. A. Local or Transitory? The local action doctrine is so ingrained in our jurisprudence that a claimant does not normally challenge the rule’s existence, but is more likely to argue that a particular cause of action is transitory in nature and not local. Chief Justice Marshall discussed this distinction between local and transitory actions in Livingston and concluded that the common law restrained the court to hold that an action for trespass to land, although an in personam action seeking monetary relief, was nevertheless local in nature because it could only take place in Louisiana. 15 F.Cas. at 664. Chief Justice Marshall stated that the question whether an action was local or transitory should be controlled by federal law. Id. at 665. See also Wright, Miller & Cooper § 3822, at 207-08. However, the Supreme Court near the end of the century stated in dictum that the question whether an action is local depends on the law of the forum state, see Huntington v. Attrill, 146 U.S. 657, 669-70, 13 S.Ct. 224, 228, 36 L.Ed. 1123 (1892), and lower federal courts, including this court, have applied state law to determine whether an action is local or transitory. See Chateau Lafayette Apartments, Inc. v. Meadow Brook National Bank, 416 F.2d 301, 304 n. 7 (5th Cir.1969). See generally Wright, Miller & Cooper § 3822, at 208-09 (“Fortunately the difference is not of great practical importance for in most instances state law has developed in accordance with the federal decisions.”) (citing federal court decisions). Plaintiff Hayes does not make a serious effort to contest the characterization of this lawsuit as local. Counsel at oral argument did suggest that what is really involved here is a contract dispute between Hayes and Gulf which just happens to involve the title to real property. We need not belabor this issue. Under Texas law it is clear that an interest in land under an oil and gas lease constitutes real estate, and that Hayes’ action to terminate Gulf’s interest is an action to try" }, { "docid": "18433043", "title": "", "text": "v. Atlas Oil Co., 31 F.2d 484 (D.La.1929), was an action to annul an oil and gas lease, brought in the district where the land was located. The court dismissed the action for damages, but allowed the action for annulment of the lease to proceed, with the result to be “binding only as to the property involved.” Id. at 485. In Minichiello Realty Associates, Inc. v. Britt, 460 F.Supp. 896 (D.N.J.1978), aff'd mem., 605 F.2d 1196 (3d Cir. 1979), the only issue was whether the plaintiff or the defendant held title to the property. Collett v. Adams, 249 U.S. 545, 39 S.Ct. 372, 63 L.Ed. 764 (1918), held that a suit by a trustee in bankruptcy to set aside as a preference a conveyance of real property was sustainable in the district where the property was located. . This approach has been urged by others as well. See Note, Local Actions in the Federal Courts, 70 Harv.L.Rev. 708, 711 (1957); Wright, Miller & Cooper, § 3822 at 129. . Moore’s Federal Practice, ¶ 0.142[2.-1] at 1368 n.40. . See Wright, Miller & Cooper, § 3822 at 130 n.25. This dictum was apparently based on a misinterpretation of Chief Justice Marshall’s opinion in Livingston v. Jefferson. Id. . The Tenth Circuit arrived at this result from Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The court stated that a federal court in a diversity action is only “another court of the State” (quoting Guaranty Trust Co. of New York v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079 (1945)) and the rule against impairment of federal jurisdiction by the incidence of state law does not preclude the state from closing the doors of federal diversity courts to suitors to whom it has closed its own doors. Erwin v. Barrow, 217 F.2d at 524. This reasoning has been criticized: Since a basic purpose of diversity jurisdiction is to prevent discrimination by the forum state against citizens of other states, it would seem inappropriate to apply a state rule which has the" }, { "docid": "18433044", "title": "", "text": "1368 n.40. . See Wright, Miller & Cooper, § 3822 at 130 n.25. This dictum was apparently based on a misinterpretation of Chief Justice Marshall’s opinion in Livingston v. Jefferson. Id. . The Tenth Circuit arrived at this result from Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The court stated that a federal court in a diversity action is only “another court of the State” (quoting Guaranty Trust Co. of New York v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079 (1945)) and the rule against impairment of federal jurisdiction by the incidence of state law does not preclude the state from closing the doors of federal diversity courts to suitors to whom it has closed its own doors. Erwin v. Barrow, 217 F.2d at 524. This reasoning has been criticized: Since a basic purpose of diversity jurisdiction is to prevent discrimination by the forum state against citizens of other states, it would seem inappropriate to apply a state rule which has the effect of insulating domestic citizens from liabilities incurred in other states. Note, Local Actions in the Federal Courts, 70 Harv.L.Rev. at 714. . If the law of the forum controls, and if Colorado law holds such an action to be local, then the anomalous situation will exist where the action cannot be brought in Kansas because Kansas law holds that it is transitory, and it cannot be brought in Colorado because Colorado law holds that it is local to Kansas." }, { "docid": "12494310", "title": "", "text": "is a matter of federal rather than state law. That view harks back to the decision of Chief Justice John Marshall, sitting on Circuit in the famous case of Livingston v. Jefferson, 15 F. Cas. 660, 665 (C.C.D.Va.1811) (No. 8411). Even though that is the clear thrust of Chief Justice Marshall’s statement in Livingston, a misreading of his opinion in a later Supreme Court (!) dictum, Huntington v. Attrill, 146 U.S. 657, 669-70, 13 S.Ct. 224, 228-29, 36 L.Ed. 1123 (1892) has caused a number of courts to look to state law instead (see the discussion of this subject in Hayes, 821 F.2d at 287-88). But as already stated, that makes not the slightest difference here. Even if this Court were required to look to the law of the forum in determining jurisdiction, the result would be identical. It has been established law in Illinois for nearly a century and a half that an action pertaining to lands that is “local” (in the legal sense) in its nature must be brought within the jurisdiction where the lands lie (Eachus v. Trustees of Illinois & Michigan Canal, 17 Ill. 534 (1856), citing {id. at 536), among numerous other authorities, Chief Justice Marshall’s opinion in Livingston; accord, United Biscuit Co. of America v. Voss Truck Lines, Inc., 407 Ill. 488, 502, 95 N.E.2d 439, 446 (1950)). Accordingly this Court lacks subject matter jurisdiction over Kavouras’ action to foreclose her mortgage on Wisconsin real estate. Both the Complaint and this action are dismissed for that reason. . This Court always undertakes an immediate review of newly-filed complaints; see Wisconsin Knife Works v. National Metal Crafters, 781 F.2d 1280, 1282 (7th Cir.1986): The first thing a federal judge should do when a complaint is filed is check to see that federal jurisdiction is properly alleged. . All further references to Title 28’s provisions will simply take the form \"Section — .” . In signing the Complaint, Kavouras lists her address as 5970 South Archer, Chicago, Illinois 60638. But that presumably identifies her residence, and residence is of course not necessarily synonymous with citizenship (the" }, { "docid": "18433038", "title": "", "text": "personam because plaintiff seeks only money damages. The action does not involve trespass, waste, or injury to land, but rather seeks damages for the tender of nonconforming legal instruments pursuant to a contract between the parties. Courts have universally held that actions based on fraud, trust, or contract are transitory, even though lands not within the jurisdiction of the court may be affected by the decree. Id. at 1367; Massie v. Watts, 10 U.S. (6 Cranch.) 148, 159-60, 3 L.Ed. 181 (1810); C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure, § 3822 at 132-33 (1976). The preceding analysis would dispose of this motion if federal law definitely controlled. This was Chief Justice Marshall’s opinion: I am decidedly of the opinion, that the jurisdiction of the courts of the United States depends, exclusively, on the constitution and laws of the United States. Livingston v. Jefferson, 15 Fed.Cas. at p. 665. However, another view is that the law of the state where the land is located controls the definition of what is a local action. See, e.g., Stewart Oil Co. v. Sohio Petroleum Co., 185 F.Supp. 765, 767 (E.D.Ill.1960) (citing, perhaps inappropriately, Kentucky Coal Lands Co. v. Mineral Development Co., 191 F. 899, 916-17 (6th Cir. 1911)). Under this approach Kansas law would apply, and there is no doubt that the action would be deemed transitory. Roberts v. Cooter, 184 Kan. 805, 339 P.2d 362, 368 (1959). The majority rule, however, apparently deriving from dictum in Huntington v. Attrill, 146 U.S. 657, 669-70, 13 S.Ct. 224, 228, 36 L.Ed. 1123 (1892), is that the law of the forum state must be applied to determine whether an action is local or transitory. See, e.g., Erwin v. Barrow, 217 F.2d 522, 524 — 25 (10th Cir. 1954). Under this approach I must determine whether, under Colorado law, this action is local or transitory. Unfortunately, Colorado law is not clear on this question. For in-state venue questions Colo.R.Civ.P. 98(a) provides that “[a]Il actions affecting real property” must be tried to the county where the property or a substantial part of it is" }, { "docid": "4405173", "title": "", "text": "an alleged trespass to his land. See 4 Beveridge, Life of John Marshall, pp. 100-116 (1919). A distinguished panel composed of District Judge John Tyler, father of the future President of the same name, and Chief Justice John Marshall, namesake of this Division of the Eastern District, dismissed the action. Chief Justice Marshall wrote that “actions are deemed transitory, where transactions on which they are founded, might have taken place anywhere ... but are local where their cause is in its nature necessarily local.” Id. at 664. Accordingly, the Chief Justice, sitting as a circuit judge, found that an action for trespass to land in Louisiana was local, and could not be heard in a Virginia court. Since Livingston, the common law local action doctrine has become ingrained in American jurisprudence, with state and federal courts alike recognizing and applying the rule. See, e.g., Louisville & N.R. Co. v. Western Union Telegraph Co., 234 U.S. 369, 34 S.Ct. 810, 58 L.Ed. 1356 (1914); Miller v. Miller, 715 S.W.2d 786, 788 (Tex. App. — Austin 1986, writ ref’d n.r.e.). The United States Court of Appeals for the Fifth Circuit maintains what it recently termed a “questionable distinction” between the local action doctrine and other matters of federal jurisdiction and venue by holding that the law of the state in which the property is located must govern in the determination of what constitutes “local action.” See, e.g., Trust Company Bank v. United States Gypsum Company, 950 F.2d 1144 (5th Cir.1992). This is in contrast to the usual rule, which is that federal law, not state law, controls the outcome of subject matter jurisdiction and venue disputes. See Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction and Related Matters 2d § 3822 at 207. Commentators and the Fifth Circuit itself attribute the difference to its adherence to Chateau Lafayette Apartments, Inc. v. Meadow Brook National Bank, 416 F.2d 301 (5th Cir.1969), in which the Fifth Circuit relied on the Supreme Court’s opinion in Huntington v. Attrill, 146 U.S. 657, 669-670, 13 S.Ct. 224, 228-29, 36 L.Ed. 1123 (1892), which apparently misread Chief" }, { "docid": "21097567", "title": "", "text": "in the Louisiana Territory could not be sustained in a Virginia court because of the local action doctrine. Justice Marshall adopted the settled common law of England that an action for trespass was a local one which could be maintained only in the state or territory where the property at issue was located. Despite some criticism, see Keller, 838 F.Supp. at 1170 & n. 3, the local action doctrine remains a viable legal principle today. See Trust Co. Bank v. U.S. Gypsum Co., 950 F.2d 1144, 1148 (5th Cir.1992); Raphael J. Musicus, Inc. v. Safeway Stores, Inc., 743 F.2d 503, 506-07 (7th Cir.1984). As an initial matter, the Court must determine whether Plaintiffs claims are transitory or local in nature. In diversity suits, some courts have applied the law of the forum state to the transitory/local question, while others have considered the question one of federal procedure and applied federal law. See Wright, Miller & Cooper, § 3822 at p. 207-09 (citing cases). The Court finds that the better approach, adopted by Justice Marshall in Livingston v. Jefferson and endorsed by Moore and Wright, Miller & Cooper, is to apply federal law. Because the Court ultimately finds that the local action doctrine is a venue matter, it is clearly a procedural rule governed by federal law, see Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 32, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (finding question of venue is procedural and must be decided under federal law). Accordingly, the Court will apply federal law to ascertain whether Plaintiffs claims are local or transitory. Generally, the distinction between local and transitory actions is the same as that between in personam and in rem jurisdiction. See Casey v. Adams, 102 U.S. 66, 68, 26 L.Ed. 52 (1880); Musicus, 743 F.2d at 506; Moore’s, § 110.20[4]. “The reason for this parallel is simply that, in order to provide in rem relief, the court must have jurisdiction over the real property at issue, and a local action must therefore be brought in the jurisdiction in which that real property is located.” Musicus, 743 F.2d" }, { "docid": "13834568", "title": "", "text": "to 28 U.S.C. § 1391, the court denies defendants’ motion to dismiss. IT IS THEREFORE ORDERED that defendants’ motion to dismiss (Doc. # 7) is denied. . While president, Thomas Jefferson had ordered United States marshals to eject Livingston and his laborers from land in Louisiana. Although Livingston held legal title to the land, Jefferson believed the land belonged to the nation. After Jefferson’s term expired, Livingston brought suit in federal court in Virginia, where Jefferson resided, claiming damages of $100,000 as a result of an alleged trespass to land. See 15 Wright, Miller & Cooper, Federal Practice and Procedure, supra at 125. . The federal venue statutes, 28 U.S.C. §§ 1391 and 1392, do not define the concepts “local” or \"transitory.\" As a result, there exists a split of authority with respect to whether federal or state law is the proper reference point for a interpretation of the federal venue statute. Musicus, supra, 743 F.2d at 506. However, it appears to be the majority rule that to determine whether the local action doctrine is applicable to a particular case, the court must look to the law of the forum state. See, e.g., Tcherepnin v. Franz, 439 F.Supp. 1340 (N.D.Ill.1977); Central Transport, Inc. v. Theurer, Inc., 430 F.Supp. 1076 (E.D.Mich.1977). In practice, whether federal or state decisions provide the reference point, the result, as in the instant case, is generally the same. See generally 15 Wright, Miller & Cooper Federal Practice and Procedure, § 3822, at 208-09 (\"Fortunately the difference [in applying federal or state decisions to determine the character of an action as local or transitory] is not of great practical importance, for in most instances state law has developed in accordance with the federal decisions.\") (citing federal court decisions). . In Musicus, the plaintiff sought monetary damages, but also asked the court to void the leases and issue an injunction to restrain a threatened breach of another lease. . Courts have applied these principles to hold other actions involving real property to be transitory, such as actions for specific performance of a contract to convey land (except when" }, { "docid": "12295203", "title": "", "text": "v. Attrill, 146 U.S. 657, 669-70, 13 S.Ct. 224, 228, 36 L.Ed. 1123 (1892), and lower federal courts, including this court, have applied state law to determine whether an action is local or transitory. See Chateau Lafayette Apartments, Inc. v. Meadow Brook National Bank, 416 F.2d 301, 304 n. 7 (5th Cir.1969). See generally Wright, Miller & Cooper § 3822, at 208-09 (“Fortunately the difference is not of great practical importance for in most instances state law has developed in accordance with the federal decisions.”) (citing federal court decisions). Plaintiff Hayes does not make a serious effort to contest the characterization of this lawsuit as local. Counsel at oral argument did suggest that what is really involved here is a contract dispute between Hayes and Gulf which just happens to involve the title to real property. We need not belabor this issue. Under Texas law it is clear that an interest in land under an oil and gas lease constitutes real estate, and that Hayes’ action to terminate Gulf’s interest is an action to try title to real property located in Colorado. See Howell v. Union Producing Co., 392 F.2d 95, 111 (5th Cir.1968) (“under Texas law an oil and gas lease creates a determinable fee vesting property interests in the lessors and lessees”); Roach v. Chevron U.S.A., Inc., 574 S.W.2d 200, 203 (Tex.Civ.App. 1978) (“rights to the surface are incident to the ownership of ... interests in land”). Hayes does not dispute the fact that he is asserting a legal right of title to real property interests situated in Colorado. B. The Effect of Shaffer v. Heitner Despite the overwhelming authority supporting the doctrine that local actions may only be brought within the territorial boundaries of the state where the land is situated, Hayes maintains that the local action rule is no longer a viable concept. We read Hayes’ argument as making two interrelated propositions. First, that Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), overruled the local action rule. Second, that a United States district court in Texas can constitutionally exercise in personam" }, { "docid": "18433039", "title": "", "text": "action. See, e.g., Stewart Oil Co. v. Sohio Petroleum Co., 185 F.Supp. 765, 767 (E.D.Ill.1960) (citing, perhaps inappropriately, Kentucky Coal Lands Co. v. Mineral Development Co., 191 F. 899, 916-17 (6th Cir. 1911)). Under this approach Kansas law would apply, and there is no doubt that the action would be deemed transitory. Roberts v. Cooter, 184 Kan. 805, 339 P.2d 362, 368 (1959). The majority rule, however, apparently deriving from dictum in Huntington v. Attrill, 146 U.S. 657, 669-70, 13 S.Ct. 224, 228, 36 L.Ed. 1123 (1892), is that the law of the forum state must be applied to determine whether an action is local or transitory. See, e.g., Erwin v. Barrow, 217 F.2d 522, 524 — 25 (10th Cir. 1954). Under this approach I must determine whether, under Colorado law, this action is local or transitory. Unfortunately, Colorado law is not clear on this question. For in-state venue questions Colo.R.Civ.P. 98(a) provides that “[a]Il actions affecting real property” must be tried to the county where the property or a substantial part of it is located. In Jameson v. District Court, 115 Colo. 298,172 P.2d 449 (1946), the court considered a contract where the plaintiff sold timber standing on his land to the defendant. The contract specified certain procedures that the defendant was to follow in cutting and removing the timber and debris. The plaintiff alleged that the defendant breached these contract provisions and sought recission of the contract and damages. The court noted that the in rem/in personam distinction is “the usual but not exclusive test” to determine what venue is proper, and that the “substance, not the form, of the action must control.” Id. at 301, 172 P.2d at 451. The court then found that: While in form this is an action to rescind a contract, in substance it is an action to determine title to timber located on land Id. at 299, 172 P.2d at 450. The court then held that “affecting real property” in Colo. R.Civ.P. 98(a) “is as broad a term as ‘to determine a right or interest in,’ ” id. at 300, 172 P.2d" }, { "docid": "18433041", "title": "", "text": "at 450, and held that the action must proceed in the county where the land was located. It is not clear that the Colorado Supreme Court would reach the same result in an interstate dispute as it would in an inter-county dispute, especially if there is a danger of depriving the plaintiff of a forum, see note 7 supra. In Kaiser Steel Corp. v. Fulton, 261 F.Supp. 997, 999 (D.Colo.1966), Judge Doyle considered the local action rule in a diversity case, and applied the first test described above, i.e., in rem actions are local; in personam actions are transitory. Presumably he was applying Colorado law as required by Edwin v. Barrow, although the only citation was to Moore’s Federal Practice. Id. Under this interpretation of Colorado law, the present action is transitory. I conclude that this action should be considered transitory. This is clearly the proper result under any of the tests except perhaps the one that would apply Colorado law. If Colorado law does in fact apply here, this result is probably still proper. Jameson is distinguishable because in it the title to the timber was inextricably connected with the contract dispute and the desired remedy. In contrast, the plaintiff here seeks only damages and does not claim title to any property. In addition, if I were to dismiss this case, the plaintiff might not be able to refile it in any other forum. I therefore conclude that this case is properly brought in this court. It is ORDERED that defendant’s motion to dismiss is denied. . See Moore’s Federal Practice, ¶ 0.142[2.-1] at 1363 n.11. For justification for this approach see the note by Judge Hare in Mostyn v. Fabrigas that is quoted in Kentucky Coal Lands Co. v. Mineral Development Co., 191 F. 899, 910 (6th Cir. 1911). . The four cases relied upon by the defendant do not support his position that this action must be brought in Kansas. One of them, Livingston v. Jefferson, reiterates the “general rule” that all actions on contract, even those respecting land, are transitory. 15 Fed.Cas. at p. 664. Weaver" }, { "docid": "4405172", "title": "", "text": "assert that venue is mandatory in this district under the “local action” doctrine because the suit instituted by Plaintiffs against the Bank Group seeks the removal of a deed of trust lien as an encumbrance on real estate located within the Eastern District of Texas. Under the local action doctrine, an action involving real property, as opposed to a transitory action, must be brought within the territorial boundaries of the state in which the land is located. Hayes v. Gulf Oil Corp., 821 F.2d 285, 287 (5th Cir.1987); see also 15 Wright, Miller & Cooper, Federal Practice & Procedure; Jurisdiction and Related Matters 2d § 3822 at 202-204. The distinction between local actions and transitory actions finds its American roots in Livingston v. Jefferson, Fed.Cas. No. 8,411 (C.C.D.Va.1811). This case arose during the presidency of Thomas Jefferson when United States marshals, acting on President Jefferson’s instructions, forcibly ejected Edward Livingston, a Louisiana landowner, from land along the Mississippi River in New Orleans. Livingston sued the by-then former president in a federal court in Virginia for an alleged trespass to his land. See 4 Beveridge, Life of John Marshall, pp. 100-116 (1919). A distinguished panel composed of District Judge John Tyler, father of the future President of the same name, and Chief Justice John Marshall, namesake of this Division of the Eastern District, dismissed the action. Chief Justice Marshall wrote that “actions are deemed transitory, where transactions on which they are founded, might have taken place anywhere ... but are local where their cause is in its nature necessarily local.” Id. at 664. Accordingly, the Chief Justice, sitting as a circuit judge, found that an action for trespass to land in Louisiana was local, and could not be heard in a Virginia court. Since Livingston, the common law local action doctrine has become ingrained in American jurisprudence, with state and federal courts alike recognizing and applying the rule. See, e.g., Louisville & N.R. Co. v. Western Union Telegraph Co., 234 U.S. 369, 34 S.Ct. 810, 58 L.Ed. 1356 (1914); Miller v. Miller, 715 S.W.2d 786, 788 (Tex. App. — Austin 1986," }, { "docid": "6757385", "title": "", "text": "See, Livingston v. Jefferson, 15 Fed.Cas. 660 (No. 8411) (C.C.D.Va.1811), at 664. . There has been much discussion in the case law and the treatises as to whether federal or local law ought to control in determining whether an action is local or transitory. See, e. g., Hasburgh v. Executive Aircraft Co., 35 F.R.D. 354, 355 (W.D.Mo.1964); and 1 Moore’s Federal Practice, ¶ 0.142[2]. It appears that the controlling case in this district is Judge Rodney’s decision in Fox, supra, 95 F.Supp. at 361, that state law con trols. As noted by Judge Rodney, there appears to be no pertinent Delaware decision and it is not clear that the distinction is recognized in Delaware courts. But cf., Blaustein v. Standard Oil Co., 5 Terry 145, 56 A.2d 772, 785 (Del.Super.Ct.1947); Cf., Del.Const. of 1897, art. I, § 9, “ . . . [E]very action shall be tried in the county in which it shall be commenced.” (emphasis added). This Court need not now decide whether Delaware law or federal law would be controlling, since it is of the opinion that in each instance the analysis would be the same; that is, whether the Court here may try the action is dependent on the issues to be resolved in the action, and the method by which a decree would be enforced. . Huntington v. Attrill, 146 U.S. 657, 669 (1892); see also, Potomac Milling & Ice Co. v. Baltimore & O. R. Co., 217 F. 665 (D.Md.1914). . Rundle v. Delaware & R. Canal Co., 21 Fed. Cas. 10 (No. 12,139) (C.C.E.D.Pa.1849); Foot v. Edwards, 9 Fed.Cas. 358 (No. 4908) (C.C.D. Conn. 1855). . See, Fox v. Warner Bros. Pictures, Inc., 95 F.Supp. at 361. . See generally, Ladew v. Tennessee Copper Co., 218 U.S. 357, 31 S.Ct. 81, 54 L.Ed. 1069, 367-69 (1910). . There being no federal cause of action, diversity is necessary if there is to be jurisdiction. . Clinchfield’s principal place of business is in West Virginia, and therefore unless chartered in Virginia, it would not have citizenship there under 28 U.S.C. § 1332(c). Just as clearly," }, { "docid": "23394096", "title": "", "text": "Co., 184 Ga. 794, 193 S.E. 763 (1937). The defendant’s analysis is unpersuasive. Federal courts use the Erie doctrine to determine which substantive state laws control a lawsuit. The Erie doctrine does not help the federal courts determine which procedural laws control a lawsuit. Raphael J. Musicus, Inc. v. Safeway Stores, Inc., 743 F.2d 503, 506 n. 2 (7th Cir.1984). Because the local action doctrine is a procedural matter, the Erie doctrine is inappo-site. . At least implicitly, the Court in Hayes acknowledged that the application of state procedural law in this situation was theoretically unsound. However, the Court refused to alter the rule it first announced in Chateau Lafayette, commenting that the result would be the same whether it applied state law or federal law. Hayes, 821 F.2d at 288. Cf. 15 Wright, Miller & Cooper § 3822, at 208-09 (“Fortunately the difference is not of great practical importance for in most instances state law has developed in accordance with the federal decisions.\"). . In deciding Chateau Lafayette Apartments and Hayes, this Court apparently relied upon erroneous dicta in Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123 (1892), in which the Supreme Court, purporting to follow Living ston, declared that “whether an action for trespass to land in one state can be brought in another state depends on the view which the latter state takes of the nature of the action.\" Id. at 669-70, 13 S.Ct. at 228 (emphasis added). . The irony of this conclusion is not lost on the Court. While federal law, which recognizes the local action doctrine, would hold that the federal district court has no jurisdiction over this action, the law of Mississippi, which does not recognize the local action doctrine, insists that the federal district court does have jurisdiction over this action. The result of our procedural rule is that state law can confer jurisdiction on a federal court even when federal law would deny jurisdiction. . We express no opinion whether the Georgia statute of repose, rather than the Mississippi statute of repose, should have governed the parties’" }, { "docid": "18433037", "title": "", "text": "and commentators, however, have seen some justification for preserving a distinction. One approach is to hold that in rem actions are local, in personam actions are transitory. See Casey v. Adams, 102 U.S. 66, 68, 26 L.Ed. 52 (1880); 1 Moore’s Federal Practice, ¶ 0.142[2.-1] at 1362-63 (“the character of the remedy sought should be determinative”). This distinction may be justified by its direct relation to the power of the court to effect its judgment. See Livingston v. Jefferson, 15 Fed.Cas. at p. 664 (citing Mostyn v. Fabrigas, 1 Cowp. 166). The majority definition, however, is that actions are deemed transitory, where transactions on which they are founded, might have taken place anywhere; but are local where their cause is in its nature necessarily local. Id. This definition includes within the “local” category not only all in rem actions, but also in personam actions of trespass and actions involving injury to land. See Moore’s Federal Practice, ¶ 0.142[2.-1] at 1368. The present case is a transitory action under either test. The action is clearly in personam because plaintiff seeks only money damages. The action does not involve trespass, waste, or injury to land, but rather seeks damages for the tender of nonconforming legal instruments pursuant to a contract between the parties. Courts have universally held that actions based on fraud, trust, or contract are transitory, even though lands not within the jurisdiction of the court may be affected by the decree. Id. at 1367; Massie v. Watts, 10 U.S. (6 Cranch.) 148, 159-60, 3 L.Ed. 181 (1810); C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure, § 3822 at 132-33 (1976). The preceding analysis would dispose of this motion if federal law definitely controlled. This was Chief Justice Marshall’s opinion: I am decidedly of the opinion, that the jurisdiction of the courts of the United States depends, exclusively, on the constitution and laws of the United States. Livingston v. Jefferson, 15 Fed.Cas. at p. 665. However, another view is that the law of the state where the land is located controls the definition of what is a local" }, { "docid": "4405174", "title": "", "text": "writ ref’d n.r.e.). The United States Court of Appeals for the Fifth Circuit maintains what it recently termed a “questionable distinction” between the local action doctrine and other matters of federal jurisdiction and venue by holding that the law of the state in which the property is located must govern in the determination of what constitutes “local action.” See, e.g., Trust Company Bank v. United States Gypsum Company, 950 F.2d 1144 (5th Cir.1992). This is in contrast to the usual rule, which is that federal law, not state law, controls the outcome of subject matter jurisdiction and venue disputes. See Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction and Related Matters 2d § 3822 at 207. Commentators and the Fifth Circuit itself attribute the difference to its adherence to Chateau Lafayette Apartments, Inc. v. Meadow Brook National Bank, 416 F.2d 301 (5th Cir.1969), in which the Fifth Circuit relied on the Supreme Court’s opinion in Huntington v. Attrill, 146 U.S. 657, 669-670, 13 S.Ct. 224, 228-29, 36 L.Ed. 1123 (1892), which apparently misread Chief Justice Marshall to have stated that state law should control the determination of what actions are local, when in fact he stated just the opposite. Id. at 208 and n. 25; Trust Company Bank, supra, 950 F.2d at 1149-1150. Fortunately the difference is not of great practical importance for in most instances state law has developed in accordance with the federal decisions. Id. at 208-209; 950 F.2d at 1149. The relevant local action statute, therefore, is Tex.Civ.Prac. & Rem.Code, § 15.-011, which provides: Actions for recovery of real property or an estate or interest in real property, for partition of real property, to remove encumbrances from the title to real property, or to quiet title to real property shall be brought in the county in which all or a part of the property is located. Texas courts have held that this section must be strictly construed, and that it only applies where suit is clearly within one of the categories set out therein. Scarth v. First Bank & Trust Co., 711 S.W.2d 140 (Tex.App. —" }, { "docid": "12295201", "title": "", "text": "Colo. 66, 207 P.2d 1188 (1949). The local action rule is so fundamental that state courts are not obligated to give full faith and credit to judgments from either federal or state courts sitting outside the local state’s territorial boundaries. See Iselin, 269 F.2d at 347 (Louisiana federal court’s judgment involving land situated in Mississippi is void and not res judicata in courts in Mississippi); Humble Oil, 398 F.2d at 367 (Texas courts have exclusive jurisdiction to determine title to realty in Texas; a South Carolina court decision would receive no full faith and credit in Texas courts). See also Clarke v. Clarke, 178 U.S. 186, 190, 20 S.Ct. 873, 876, 44 L.Ed. 1028 (1900) (Connecticut courts are not required to give full faith and credit to a judgment of the South Carolina Supreme Court concerning the construction of a will which affected the passing of title to land situated in Connecticut). What is explicit or implicit in all of these decisions is that federal and state courts lack jurisdiction over the subject matter of claims to land located outside the state in which the court sits. A. Local or Transitory? The local action doctrine is so ingrained in our jurisprudence that a claimant does not normally challenge the rule’s existence, but is more likely to argue that a particular cause of action is transitory in nature and not local. Chief Justice Marshall discussed this distinction between local and transitory actions in Livingston and concluded that the common law restrained the court to hold that an action for trespass to land, although an in personam action seeking monetary relief, was nevertheless local in nature because it could only take place in Louisiana. 15 F.Cas. at 664. Chief Justice Marshall stated that the question whether an action was local or transitory should be controlled by federal law. Id. at 665. See also Wright, Miller & Cooper § 3822, at 207-08. However, the Supreme Court near the end of the century stated in dictum that the question whether an action is local depends on the law of the forum state, see Huntington" }, { "docid": "21097568", "title": "", "text": "Livingston v. Jefferson and endorsed by Moore and Wright, Miller & Cooper, is to apply federal law. Because the Court ultimately finds that the local action doctrine is a venue matter, it is clearly a procedural rule governed by federal law, see Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 32, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (finding question of venue is procedural and must be decided under federal law). Accordingly, the Court will apply federal law to ascertain whether Plaintiffs claims are local or transitory. Generally, the distinction between local and transitory actions is the same as that between in personam and in rem jurisdiction. See Casey v. Adams, 102 U.S. 66, 68, 26 L.Ed. 52 (1880); Musicus, 743 F.2d at 506; Moore’s, § 110.20[4]. “The reason for this parallel is simply that, in order to provide in rem relief, the court must have jurisdiction over the real property at issue, and a local action must therefore be brought in the jurisdiction in which that real property is located.” Musicus, 743 F.2d at 506. Tres pass actions are an exception to this rule, for they are clearly in personam actions. However, courts in the United States have held them to be local actions since at least Livingston v. Jefferson in 1811. As noted above, Chief Justice Marshall in Livingston applied the established common law rule that trespass actions are local in nature. See 15 Fed. Cas. 660 (C.C.D.Va.1811). Some courts and commentators have criticized the characterization of trespass actions as local, and a few states have rejected the rule. See Musicus, 743 F.2d at 510 & n. 5 (listing cases and noting that Louisiana, Minnesota, Arkansas, Missouri, and New Hampshire state courts have rejected the Livingston rule); Moore's, § 110 App. 104[2] (urging rejection of the Livingston rule). However, federal cases appear to have followed the Livingston rule. See Ellenwood v. Marietta Chair Co., 158 U.S. 105, 15 S.Ct. 771, 39 L.Ed. 913 (1895); Wright, Miller & Cooper, § 3822 n.30. Thus, the Court finds that under federal law, an action for trespass is a local action." }, { "docid": "21097566", "title": "", "text": "subject matter jurisdiction over the instant case. II “[C]ourts have distinguished between transitory actions and ‘local’ actions, which are in rem actions affecting title to real property.” 17 Moore’s Federal Practice § 110.20[1] (3d ed.). While transitory actions are governed by venue statutes and the law governing personal jurisdiction, a local action can generally be brought only in the state where the property involved in the action is located. See, e.g., Hayes v. Gulf Oil Corp., 821 F.2d 285, 287 (5th Cir.1987); Moore’s, § 110.20[3]. The distinction between transitory and local actions traces its origins to the early common law of England. See, e.g., Keller v. Millice, 838 F.Supp. 1163, 1169 & n. 1 (S.D.Tex.1993); 15 Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure: Civil 2d § 3822 n.l (2d ed.1986). The leading case establishing the distinction in American common law is Livingston v. Jefferson, 15 Fed. Cas. 660 (C.C.D.Va.1811). In Livingston, Chief Justice John Marshall, riding circuit, held that an action against Thomas Jefferson for trespass on land in the Louisiana Territory could not be sustained in a Virginia court because of the local action doctrine. Justice Marshall adopted the settled common law of England that an action for trespass was a local one which could be maintained only in the state or territory where the property at issue was located. Despite some criticism, see Keller, 838 F.Supp. at 1170 & n. 3, the local action doctrine remains a viable legal principle today. See Trust Co. Bank v. U.S. Gypsum Co., 950 F.2d 1144, 1148 (5th Cir.1992); Raphael J. Musicus, Inc. v. Safeway Stores, Inc., 743 F.2d 503, 506-07 (7th Cir.1984). As an initial matter, the Court must determine whether Plaintiffs claims are transitory or local in nature. In diversity suits, some courts have applied the law of the forum state to the transitory/local question, while others have considered the question one of federal procedure and applied federal law. See Wright, Miller & Cooper, § 3822 at p. 207-09 (citing cases). The Court finds that the better approach, adopted by Justice Marshall in" } ]

[ { "docid": "15662916", "title": "", "text": "of liquidating the damages recoverable for the breach complained of, and that the defendant was justified in refusing to continue to accept and pay for warrants by the plaintiff’s breach of its obligation under the contract by failing to furnish what was referred to as a nonlitigation certificate. We think the court correctly ruled that the concluding provision of the contract was not one for liquidated damages. The use of the word “forfeited,” unaccompanied by any qualifying or explanatory language, imports a penalty. Van Buren v. Digges, 11 How. 461, 477, 13 L. Ed. 771; Evans v. Moseley, 84 Kan. 322, 114 Pac. 374, 50 L. R. A. (N. S.) 889, and note. Furthermore, the stipulation is to the effect that the $1,000 was to be forfeited in case of any failure of the defendant to carry out its proposal; the provision being as applicable to a failure of the defendant to accept and pay for only one $1,000 warrant of the $186,000 contracted for as to its failure to accept and pay for all or $51,000 of such warrants. This circumstance indicates that the stipulation was not intended to be one for liquidated damages, but for a penalty to secure payment of the amount of damages suffered by the plaintiff from any breach of the contract by the defendant. Watts v. Camors, 115 U. S. 353, 6 Sup. Ct. 91, 29 L. Ed. 406; Sun Printing & Publishing Ass’n v. Moore, 183 U. S. 642, 22 Sup. Ct. 240, 46 L. Ed. 366. Nothing in the language of the stipulation, read in the light of the attending circumstances, indicates that the parties estimated or contemplated that for any breach by the defendant, whether total or partial, the damage to the plaintiff would be the same, or that plaintiff could be damaged to the extent of $1,000 by the defendant’s failure to accept and pay for only one $1,000 warrant. The provision in question did not have the effect of fixing the amount of damages recoverable for the breach of the contract which was alleged and complained of. Evidence adduced" } ]

[ { "docid": "15393791", "title": "", "text": "petition, less the reasonable cost or value of tho salvage or material that could bo saved therefrom, and less tho reasonable value of the derrick ereeted on the 45 acres leased by the defendant, and that the amount which plaintiff is entitled to recover, after making duo allowance for the items last above mentioned, is the sum of $19,500. * ” * “(3) The court finds tho evidence disclosed no material difference in the value of the 45-acre lease at the time the contract was made, and at the time of the breach thereof by the defendant, the time of said breach being at the end of the 130 days from the date of said contract, which includes the 100-day period of the original contract and the 30 days’ extension granted by the plaintiff.” The rulings of tho court that plaintiff was entitled to recover, and as to the measure of damages recoverable, are duly presented for review. In behalf of the defendant it was contended that the plaintiff, on tho facts found, was not entitled to recover as damages an amount ascertained in the manner adopted by the court. By the contract the plaintiff acquired the right to have a well drilled by defendant on the leased land as stipulated. A result of defendant’s failure to do what it contracted to do was to make it liable to the plaintiff for the amount of the reasonable cost of having that done which the defendant obligated itself to do. .The plaintiff’s right to ¡recover the amount of the reasonable cost of that to which the contract entitled him was not dependent on his proving that the value of the lease, or ■of plaintiff’s interest therein, would have been enhanced if defendant had drilled a well pursuant to the contract. Lawton v. Fitchburg Railroad Co., 8 Cush. (Mass.) 230, 54 Am. Dec. 753; Lee v. Harris, 85 Conn. 212, 82 A. 186; Ardizonne v. Archer, 72 Okl. 70, 178 P. 263; Covington Oil Co. v. Jones (Tex. Civ. App.) 244 S. W. 287. The defendant has no tenable ground of complaint" }, { "docid": "15393792", "title": "", "text": "entitled to recover as damages an amount ascertained in the manner adopted by the court. By the contract the plaintiff acquired the right to have a well drilled by defendant on the leased land as stipulated. A result of defendant’s failure to do what it contracted to do was to make it liable to the plaintiff for the amount of the reasonable cost of having that done which the defendant obligated itself to do. .The plaintiff’s right to ¡recover the amount of the reasonable cost of that to which the contract entitled him was not dependent on his proving that the value of the lease, or ■of plaintiff’s interest therein, would have been enhanced if defendant had drilled a well pursuant to the contract. Lawton v. Fitchburg Railroad Co., 8 Cush. (Mass.) 230, 54 Am. Dec. 753; Lee v. Harris, 85 Conn. 212, 82 A. 186; Ardizonne v. Archer, 72 Okl. 70, 178 P. 263; Covington Oil Co. v. Jones (Tex. Civ. App.) 244 S. W. 287. The defendant has no tenable ground of complaint because of the method adopted by the court in fixing the amount of its award. Evidently the provision that the contract “shall be null and void and of no effect .unless” defendant shall begin the drilling of the well -within the stipulated time was not intended to be one for liquidated damages. The language used fairly imports a penalty for a specified breach of the contract by the defendant. Brown-Crummer Co. v. W. M. Rice Const. Co. (C. C. A.) 285 F. 673. The provision was -for the protection and benefit of the plaintiff. Leatherman v. Oliver, 151 Pa. 646, 25 A. 309; Wills v. Manufacturers’, etc., Gas Co., 130 Pa. 222, 18 A. 721, 5 L. R. A. 603. Certainly the language of the provision does not evidence a purpose to make a forfeiture by the defendant of its rights under the lease the sole consequence of its breach of its obligation, and to exempt it from liability to plaintiff for damages sustained by the latter in consequence of a well not being drilled" }, { "docid": "15393790", "title": "", "text": "Time is the essence of this contract, and the same shall be null and void and of no effect unless said party of the second part shall begin the drilling of the well as provided however, on or before 100 days of the date hereof.” After the execution -of the contract the time for beginning the drilling of a well was, for a valuable consideration received by plaintiff, extended 30 days. The petition alleged that defendant erected a derrick on the leased land, but wholly failed to drill a well thereon. Pursuant to a written stipulation of tho parties the ease was tried by the court without a jury. The court made the following findings: “(1) The court finds that partios entered into the contract declared on in plaintiff’s petition as alleged therein. “(2) Tho court finds that defendant breached the contract, as alleged in plaintiff’s petition, and that plaintiff is entitled to recover damages heroin for the amount of the reasonable value, of cost of drilling a well on the land described in plaintiff’s petition, less the reasonable cost or value of tho salvage or material that could bo saved therefrom, and less tho reasonable value of the derrick ereeted on the 45 acres leased by the defendant, and that the amount which plaintiff is entitled to recover, after making duo allowance for the items last above mentioned, is the sum of $19,500. * ” * “(3) The court finds tho evidence disclosed no material difference in the value of the 45-acre lease at the time the contract was made, and at the time of the breach thereof by the defendant, the time of said breach being at the end of the 130 days from the date of said contract, which includes the 100-day period of the original contract and the 30 days’ extension granted by the plaintiff.” The rulings of tho court that plaintiff was entitled to recover, and as to the measure of damages recoverable, are duly presented for review. In behalf of the defendant it was contended that the plaintiff, on tho facts found, was not" }, { "docid": "22766302", "title": "", "text": "above conditions” shall render the lease null and void. These provisions make it plain that it was the intention of the parties to make the covenants of the lessee conditions as well as covenants, and to reserve to the lessor the right to avoid the lease for the breach of any of them. But it is insisted that the words “any of the above conditions” refer to what is' expressed, and not to what is implied, or, testate it differently, that they refer to the mere letter of the preceding stipulations and not to their spirit or legal effect. To so hold would be to declare the lease avoidable if the lessee fails to deliver one-tenth of all the oil produced and saved, or to pay the annual rental for gas used off the premises, but not avoidable if the lessee, having found oil and gas in paying quantities, ceases development and production, at a time when these fluids are being drawn off through wells on adjacent lands, and thereby jeopardizes the controlling object of the lease. And it would seem that to so hold might result in the lessor being practically without any remedy for the breach of the covenant for further development and production, inasmuch as specific performance cannot be had against one having an option to terminate the contract at any time (Marble Co. v. Ripley, 10 Wall. 339, 359, 19 L. Ed. 955; Express Co. v. Railroad Co., 99 U. S. 191, 200, 25 L. Ed. 319; Federal Oil Co. v. Western Oil Co., 57 C. C. A. 428, 121 Fed. 674; Rust v. Conrad [Mich.] 11 N. W. 265, 41 Am. Rep. 720), and as the obvious.difficulty in establishing the amount of oil and gas in the demised premises, or the amount diverted therefrom by the wells on adjoining lands, would be a serious obstacle to the recovery of adequate damages at law. But, however this may be, the present insistence is not well grounded. The question is essentially one of intention (4 Kent’s Com. *132; Doe v. Elsam, M. & M. 189; Faylor v." }, { "docid": "17880022", "title": "", "text": "had that theory of the “Modification Agreement.” But why was the option not mentioned? A capable lawyer for the company drew the contract. And even if we assume the instrument to be ambiguous in this respect, the rule applies that the doubt be resolved against the party who drew it. Section 5057, C. O. S. 1921; Sac City Canning Co. v. Griffin Gro. Co., 99 Okl. 99, 225 P. 702. This is also the general rule. Sternberg v. Drainage Dist. (C. C. A.) 44 F.(2d) 560; Phoenix Ins. Co. v. Slaughter, 12 Wall. 404, 20 L. Ed. 444; Queen Ins. Co. v. Meyer Milling Co. (C. C. A.) 43 F.(2d) 885; Graham v. Business Men’s Assurance Co. (C. C. A.) 43 F.(2d) 673. Besides, the “Modification Agreement” was that “the commencement of a well shall constitute compliance with the original agreement,” and this language excludes the idea, that it might be complied with by a reassignment of tho half interest in the lease. We are dearly of the opinion an option to obtain a release by reassigning the lease cannot fairly be deduced from the second agreement. The plaintiff was entitled to recover damages for the failure to drill the well. The cost of drilling a dry hole was stipulated to be $50,000. This sum represented the measure of damages the plaintiff was entitled to recover, as it had a direct interest in the well. Eysenbach v. Cardinal Pet. Co., 110 Okl. 12, 236 P. 10; Okmulgee P. & R. Co. v. Baugh, 111 Okl. 203, 239 P. 900; All-American Oil & Gas Co. v. Connellee (C. C. A.) 3 F.(2d) 107; Covington Oil Co. v. Jones (Tex. Civ. App.) 244 S. W. 287. There was no error in awarding that sum to the plaintiff. The additional demand of tho plaintiff for $12,000l was properly denied, as it was necessarily based on the theory that oil would he found in the well. By section 5976, C. O. S. 1921, the measure of damages recoverable for breach of contract is the compensation for the detriment proximately caused thereby, or what in" }, { "docid": "9934005", "title": "", "text": "clause in question to invalidate the lease. Guffey v. Smith, 237 U. S. 101, 116, 117, 35 Sup. Ct. 526, 59 L. Ed. 856; Brewster v. Lanyon Zinc Co., 140 Fed. 801, 72 C. C. A. 213. The cases cited by appellee upon this question are not in point. In Superior Oil & Gas Co. v. Mehlin, 25 Okl. 809, 108 Pac. 545, 138 Am. St. Rep. 942, the defendant made not a lease but a contract to make a lease to plaintiff of certain lands for oil and gas. The action was to reform and secure specific performance of the lease. The contract sued on was wholly executory. In this case the bill shows the lease'in suit was in part executed, and is not a suit for specific performance, but is in the nature of an action to quiet title. The holding in that case was that specific performance will not lie unless the agreement is certain, fair, and just in all its parts, and such an action may, where showing that the contract is unfair, unjust, and against good conscience, well justify the court in refusing such decree, although the contract, had it been executed, might offer no sufficient ground for cancellation. It was further held that an executory contract which under its terms leaves it optional with one party whether or not he will proceed with the contemplated enterprise makes the same likewise optional with the other, and specific performance will not be decreed. It is manifest that case does not sustain the contention of the appel lee» In Huggins v. Daley, 99 Fed. 606, 40 C. C. A. 12, 48 L. R. A. 320, it is held that where an oil and gas lease provides for the compensation of the lessor solely by a share of the product, and provides for the sinking of a well within a specified time under a penalty as distinguished from liquidated damages, and the lessee makes no attempt to comply with the terms of his contract, and manifests no intention to comply therewith, the lease becomes forfeitable at the expiration" }, { "docid": "10459546", "title": "", "text": "was the drilling of the wells in question. Chi.-Okla. Oil & Gas Co. v. Shertzer (Okla. 1924), 231 Pac. 877; Investors' Utility Corporation v. Challacombe (Tex., 1931), 39 S. W. (2d) 175. The same conclusion obtains when the question is approached from the petitioners’ standpoint. In this view it is necessary to determine what interests petitioners had in each tract, as grantees, after the date of each lease or assignment but before a well was completed on the tract. As we have indicated above, petitioners contend that they had a fee interest, subject to termination upon breach of condition subsequent and, since they were thus drilling upon their own property, that the deduction for intangible drilling costs must be allowed. However, petitioners misconceive the legal effect of their “unless” leases and assignments. These instruments did not confer upon petitioners a title to the several tracts, but merely gave to them a privilege of going upon the land for the purpose of drilling a well. The effect of the “unless” lease with a delay rental clause was stated by the Circuit Court of Appeals for the Fifth Circuit in Gillespie v. Bobo, 271 Fed. 641, wherein the court said: Such instruments as the one in question have been passed on frequently by the courts of Texas. It is well settled by the decisions of those courts that such an instrument confers on the so-called lessee a privilege for the specified time, with the option to secure the extension of the privilege for an additional period upon complying with the prescribed condition, and that time is of the essence of such a provision as the one above set out. Ford v. Barton (Tex. Civ. App.) 224 S. W. 268: Bailey v. Williams, (Tex. Civ. App.) 223 S. W. 311; Young v. Jones (Tex. Civ. App.) 222 S. W. 691; Ford v. Cochran (Tex. Civ. App.) 223 S. W. 1041. * * * The court in that case further said: * * * The consequence of a failure to do what is required to acquire a right or thing is not a forfeiture" }, { "docid": "22775214", "title": "", "text": "the building entitles the owner to a return of the instalments paid, has been declared by the state courts in a number of cases. School Trustees v. Bennett, 27 N. J. L. 513, 517; 72 Am. Dec. 373, 374; Tompkins v. Dudley, 25 N. Y. 272; 82 Am. Dec. 349; Bartlett v. Bisbey, 27 Tex. Civ. App. 405, 408 ; 66 S. W. Rep. 70; and cases cited. This court, in a case that has been often cited and followed, where a government contractor, without fault of his own, was prevented from performing his contract owing to the abandonment of the project^ held that he was entitled to recover from the United States what he had expended towards performance (less the value of his materials on hand), although he failed to establish that there would have been any profits. United States v. Behan, 110 U. S. 338, 344. And see Holt v. United Security Life Ins. Co., 76 N. J. L. 585, 597. We do not think Article 4 can properly be so construed as to restrict the Government to the remedy there indicated in the event of default by the contractor, or to exclude recovery of the actual damages directly attributable to such default if, in the reasonable exercise of. its rights, the Government determines not to complete the building. In the language of the Article, the Government is \"authorized and empowered” — not \"obliged” — to complete the work at the expense of the contractor; “in ivhich event” the contractor and his sureties shall' be “further liable for any damages incurred through such default and any and all other breaches of this contract.” The phraseology indicates a purpose to give to the Govern-ment a right additional to .those it would otherwise have; the stipulation is made for its benefit, and, being optional in form, cannot be construed into a covenant in favor of the defaulting contractor or his surety. Even in case the option is exercised, the language quoted leaves contractor and surety liable for other damages; a fortiori, the intent is to preserve their liability in case" }, { "docid": "17466169", "title": "", "text": "1 Pomeroy’s Eq. Jur. (4th Ed.) § 381. It was no part of the purpose of the above set out provision of the lease to secure the payment of any sum due to the appellees or either of them. The appellant was under no obligation to pay the $80. There was no debt to be secured. 'The quoted provision stated the condition to be complied with by the lessee to obtain an extension of the time allowed for beginning drilling operations. Compliance with that condition would have been the exercise of an option given to the lessee. Such instruments as the one in question have been passed on frequently by the courts of Texas. It is well settled by the decisions of ■those courts that such an instrument confers on the so-called léssee a privilege for the specified time, with the option to secure the extension of the privilege for an additional period upon complying with the prescribed condition, and that time is of the essence of such a provision as the one above set out. Ford v. Barton (Tex. Civ. App.) 224 S. W. 268; Bailey v. Williams (Tex. Civ. App.) 223 S. W. 311; Young v. Jones (Tex. Civ. App.) 222 S. W. 691; Ford v. Cochran (Tex. Civ. App.) 223 S. W. 1041. The equitable rule as to relieving against forfeitures has no application to the case of a failure of a holder of an option to do, within the time fixed, what is required to acquire the thing which is the subject of the option. Equity does not undertake to dispense with compliance with what is made a condition precedent to the acquisition of a right. Kelsey v. Crowther, 162 U. S. 404, 16 Sup. Ct. 808, 40 L. Ed. 1017; Waterman v. Banks, 144 U. S. 394, 12 Sup. Ct. 646, 36 L. Ed. 479; 1 Pomeroy’s Eq. Juris. (4th Ed.) § 455. The contract states the terms on which the appellees agreed that a termination, on October 30, 1918, of the privilege of drilling or exploring for oil or other minerals, could be prevented." }, { "docid": "6256506", "title": "", "text": "surrendered the right to have a forfeiture of the lease for such breach and cannot now ask a court of equity to declare a forfeiture in contradiction to the plain language of their lease. But, Plaintiffs say that the contract provision barring the remedy of forfeiture is in violation of Title 15, Oklahoma Statutes, Section 216. This statute provides : “Every stipulation or condition in a contract, by which any party thereto is restricted from enforcing his rights under the contract by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void.” This statute, however, has been held not to apply to the substantive rights of a party, but rather to procedural remedies. Moreover, it is not directed to stipulations restricting a party to a particular remedy for the enforcement of his rights in an ordinary tribunal, Straight v. Talcott, Inc., 329 F.2d 1 (Tenth Cir. 1964). Therefore, this statute does not make void the lease provision precluding forfeiture, a substantive right, and restricting the Plaintiffs to their remedy of damages. Under the provisions of Rule 56, F.R. Civ.P., the Court finds no genuine issue of material facts herein and that the Defendant is entitled to summary judgment dismissing the action asserted in the Complaint against it because the Plaintiffs are not entitled as a matter of law to the remedy of forfeiture sought herein. . Unlike the majority opinion in Magnolia Petroleum Co. v. Vaughn, 195 Okl. 662, 161 P.2d 762, (1945), Paragraph 10 of the lease herein is not ambiguous, does not mention delay rentals and contains no language which would limit the surrender of forfeiture to the primary term of the lease. Counsel for Plaintiffs acknowledged at oral arguments that Paragraph 10 of the lease was not ambiguous. . Plaintiff has not sought damages for breach of the implied covenant to develop. Summers Oil & Gas, Perm. Ed. Vol. 3, § 433, p. 6. Also see Summers Oil & Gas, Perm. Ed. Vol. 2, § 398, p. 559, with reference to the obligation to" }, { "docid": "2642750", "title": "", "text": "provides that “every general partner is liable to third persons for all the obligations of the partnership, jointly with his co-partners.” The death of E. L. File dissolved the partnership and the action was maintainable only against G. L. File individually and as the liquidating trustee of the partnership assets. See White & Smith v. Dillinger, 50 Okl. 555, 151 P. 194; Walker Drilling Co. v. Carlew Drilling Contractors, 109 Okl. 7, 9, 234 P. 598, 600. Bessie File was not liable, either individually or as a member of the partnership. The judgment is reversed and the cause remanded with instructions to enter judgment in favor of the Flour Company and against G. L. File as liquidating trustee of the partnership assets and individually in accordance with the provisions of the contract. Hereinafter referred toas the Flour Company. Hereinafter referred to as File Brothers. In the contract the Flour Company is called the Seller. in the contract File Brothers is called the Buyer. Sections 9489 and 9490 read as follows: “Every contract, by which the amount of damages to bo paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided by the next section.” “A stipulation or condition in a contract, providing for the payment of an amount which shall be presumed to be the amount of damage sustained by a breach of such contract, shall be held valid, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.” Denison v. Phipps, 87 Okl. 299, 211 P. 83, 85; Consolidated Fuel Co. v. Gunn, 89 Okl. 73, 213 P. 750, 751; Clem Oil Co. v. Oliver, 106 Okl. 22, 232 P. 942, 943. Federal Surety Co. v. Minneapolis S. & M. Co., 8 Cir., 17 F.2d 242, 245; Brown v. Ford Motor Co., 10 Cir., 48 F.2d 732; Clark v. First National Bank, 59 Okl. 2, 157 P. 96. Illinois Trust & Savings Bank v. City of Burlington, 79 Kan. 797, 101 P. 649," }, { "docid": "857577", "title": "", "text": "it was not intended that defendants would be contractually obligated to make delay rental payments, or that plaintiffs would be entitled to declare the agreement in default, or in breach, as a result of their failure to do so. In this context, applying the governing principles of contract interpretation, I have concluded that when read as a whole, the leases automatically terminated upon defendants’ failure to make delay rental payments and did not require that plaintiffs give notice of default, a conclusion that appears to be consistent with the weight of authority on this issue. See, e.g., Richfield Oil Corp. v. Bloomfield, 103 Cal.App.2d 589, 229 P.2d 838 (1951) (finding that the “unless” lease retains its character even where the lease contains a provision requiring notice of default upon breach of any term); accord Woodside v. Lee, 81 N.W.2d 745 (N.D.1957); Fremont Lumber Co. v. Starrell Petroleum Co., 228 Or. 180, 364 P.2d 773 (1981); Clovis v. Carson Oil & Gas Co., 11 F.Supp. 797 (E.D.Mich.1935); see also Nancy SainhPaul, summers Oil and Gas § 20.3 (citing cases); Waddle v. Lucky Strike Oil Co., Inc., 551 S.W.2d 323 (Tenn.1977) (refusing to apply a no termination or forfeiture clause for failure to pay to an “unless” clause in an oil and gas lease). This interpretation of the leases gives full effect to all of the provisions at issue, and it is consistent with the intent of the parties as well as the early expressed principle of law in New York that “[w]hile, ordinarily, forfeiture or abandonment is not looked upon with favor, that rule is not applicable to ... oil leases.” Conkling, 127 A.D. 761, 112 N.Y.S. at 17. IV. SUMMARY AND CONCLUSION The state’s moratorium on horizontal high-volume hydro-fracking for recovery of gas from the Marcellus Shale formation, assuming that it qualifies as a force majeure, has the effect of extending the primary term of each of the plaintiffs leases. That event, however, does not effectuate a transition into the secondary term of the leases, since drilling has not yet occurred and yielded gas or oil in paying quantities on" }, { "docid": "21744631", "title": "", "text": "After expressing an opinion as to the cost of completing the well, the quantity of oil that would be produced, the cost of operation, and the value of the oil, some of the witnesses made computations tending to show the exact amount of damages suffered by the plaintiff in error, and this is assigned as error. But, if it was competent for the witnesses to express an opinion as to the amount of the different items, the mere computations or additions could not be prejudicial error. No doubt there are elements of uncertainty in this case, such as the fact pf pro duetion, the amount of production, its duration, the value of the oil, and perhaps in other respects; but the testimony offered was the best obtainable, and we think that under the authorities its weight was for the jury. There was, therefore, no error in the rulings complained of. The remaining assignments call for but brief consideration. The plaintiff in error contends that the only remedy for a breach of the collateral agreement was to declare a forfeiture of the contract. Neither the assignment of the oil and gas lease from the defendant in error to the plaintiff in error, nor the collateral agreement between the parties, contained a forfeiture clause; but, even if either or both did, it is well settled that such a clause is designed for the benefit of the lessor, and that he may take advantage of it or not as he chooses. He may declare a forfeiture of the contract, or he may, at his option, allow the contract to stand and sue for damages for the breach. 40 Corpus Juris, 1094; Empire Gas & Fuel Co. v. Pendar (Tex. Civ. App.) 244 S. W. 184; Junction Oil & Gas Co. v. Pratt, 99 Okl. 14, 225 P. 717. It 'is also contended that there was no proof that the well would not have produced oil at a depth of less than 4,600 feet. There was competent testimony tending to prove that the well would not produce in the quantities specified in the collateral" }, { "docid": "21744632", "title": "", "text": "to declare a forfeiture of the contract. Neither the assignment of the oil and gas lease from the defendant in error to the plaintiff in error, nor the collateral agreement between the parties, contained a forfeiture clause; but, even if either or both did, it is well settled that such a clause is designed for the benefit of the lessor, and that he may take advantage of it or not as he chooses. He may declare a forfeiture of the contract, or he may, at his option, allow the contract to stand and sue for damages for the breach. 40 Corpus Juris, 1094; Empire Gas & Fuel Co. v. Pendar (Tex. Civ. App.) 244 S. W. 184; Junction Oil & Gas Co. v. Pratt, 99 Okl. 14, 225 P. 717. It 'is also contended that there was no proof that the well would not have produced oil at a depth of less than 4,600 feet. There was competent testimony tending to prove that the well would not produce in the quantities specified in the collateral agreement above the Miley sand, and in the absence of exceptions to the instructions we must presume that the issues were properly submitted to the jury. It is next contended that the assignment of the oil and gas lease and the collateral agreement created a partnership or joint adventure between the parties, and that an action at law will not lie in such eases. Under the terms of the agreement between the parties, the defendant in error agreed to perform certain services, and to receive as compensation therefor a portion of the profits realized, if any. Such an'agreement between two corporations does not create a partnership, especially in the face of an express agreement that their contract shall have no such effect, as was the case here. “It seems to us that this agreement cannot be construed to be a formation of a partnership in any sense. It purports to be a lease. It is reeited in the instrument itself that it is a lease, and while, of course, such recitation would not make it" }, { "docid": "10854666", "title": "", "text": "and recover the difference between the contract and the market price, or resell the property and recover tho difference between tho amount realized at the sale and the contract price and the expenses of the sale. Alabama Grocery Co. v. Hammond (C. C. A.) 285 F. 723; Gussman v. Byrd Cattle Co. (C. C. A.) 11 F.(2d) 136; Waples v. Overaker, 77 Tex. 7, 13 S. W. 527, 19 Am. St. Rep. 727; Bowden v. Plow Co. (Tex. Civ. App.) 206 S. W. 124. The seller may be deprived, of the right to resort to the first mentioned remedy by the circumstance that at the time of the buyer’s breach of the contract the subject of it is not in deliverable condition,, with the result that the expenditure by the seller of what is necessary to acquire or complete the property in order to put it in a deliverable condition would’ be inconsistent with the rule requiring the injured party to make his damages from the breach of the contract as light as possible. The existence of the just-mentioned circumstance was not shown by the evidence in the instant ease. As above indicated, when the defendant breached the contract the plaintiff was, and continued to be, willing and able to deliver the property called for by the contract. We conclude that tho judgment was not erroneous in so far as it was in favor of the plaintiff. A result of a compliance with the provisions of the contract in question by the parties thereto would have been to vest in the defendant control of the Corpus Christi Gas Company, he being obligated to do what was required to give him such control by becoming the owner of more than 80 per cent, of that corporation’s capital stock. For the consideration stated, he obligated himself that that company, when he “shall have assumed the control and management of the business” of it pursuant to the contract, would do the things specified in an above set out part of the contract. This, was not a promise or obligation of that company, which" }, { "docid": "10286189", "title": "", "text": "the indicated load factor. Provided that is done by the plaintiff then there is an obligation upon the defendant to pay for such electrical energy at the rate specified, namely, at the rate of $20 per horse-power per year, payable monthly. I do not say that the defendant was bound to take the power, even if available; the plaintiff was providing a service, the defendant might use that service or not, but if the service were available the defendant was bound to pay for it [pp. 498-99]. Accordingly, Mobil’s reduction in power use in January 1971 was not in itself a breach of contract. Neither has TVA sued for damages for breach of contract because of such reduction; its counterclaim is for the accrued amounts which Mobil is obligated to pay by the terms of the contract. In such a situation, no question of liquidated damages or penalty arises. The applicable principles are clearly stated in 22 Am.Jur.2d Damages, §§ 212-213 (1965): The phrase “liquidated damages” means a sum stipulated and agreed upon by the parties, at the time of entering into a contract, as being payable as compensation for injuries in the event of a breach. . •X- * # -X- * * . A penalty is an agreement to pay a stipulated sum on breach of contract, irrespective of the damage sustained. ... A provision for payment of a specified sum as compensation for acts contemplated by the contract, as opposed to compensation for injury resulting from breach of the contract, is neither a penalty nor liquidated damages [pp. 297-299], This is a general rule of law applicable in contract cases generally. See, e. g., Kirby v. United States, 273 F. 391, 394 (9th Cir. 1921), aff’d, 260 U.S. 423, 427, 43 S.Ct. 144, 67 L.Ed. 329 (1922); Jordan Furniture Co. v. Oklahoma Publishing Co., 171 Okl. 644, 47 P.2d 91, 93-94 (1935); Preyer v. Parker, 257 N. C. 440, 125 S.E.2d 916, 920 (1962); Gunnell v. Nello L. Teer Co., 205 Va. 28, 135 S.E.2d 104, 109 (1964); Folden v. Lobrovich, 171 Cal.App.2d 627, 341 P.2d 368," }, { "docid": "23300548", "title": "", "text": "the obligation to continue the development and production of oil or gas with reasonable diligence. This obligation is not a condition, but a covenant, and its breach will not work a forfeiture of the lease. The lessor is, however, not remediless, having the usual and ordinary right to sue for damages, and in extraordinary circumstances, where damages furnish no adequate remedy, to invoke equitable jurisdiction to compel performance of the obligation upon pain of cancellation of the lease. It will be noted that the relief awarded in this case accords with these principles, and that if there is evidence to support the finding of the court that defendant has breached the implied covenant for development, the decree must stand, unless appellant is right in its contention that the lease is an indivisible one, requiring the question of compliance with the implied covenant to be determined from a consideration not as was done here, of conditions applying to appellant’s portion of the land alone, but of conditions applying to the original lease as a whole. Upon the question of whether the lease is divisible or indivisible, it must be premised that it is conceded by plaintiff and defendant that the lease is indivisible as to the requirement for the fixing of the primary term by obtaining production and that there is no contention made hero that as to the requirement to drill or pay rentals the finding of production in the first well did not stop the payment of rentals as to all of the assignees, and fix in each of them a determinable fee in that portion of the land assigned to him subject to become forfeit only upon the cessation of the use or upon abandonment. W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.(2d) 27. The contention arises upon the implied covenant to' reasonably develop, the prime consideration for the leasing. Whether a contract is entire or severable depends primarily upon the purpose and intent of the parties, to be derived from the language used, and the subject-matter and purpose of the contract, in" }, { "docid": "15393793", "title": "", "text": "because of the method adopted by the court in fixing the amount of its award. Evidently the provision that the contract “shall be null and void and of no effect .unless” defendant shall begin the drilling of the well -within the stipulated time was not intended to be one for liquidated damages. The language used fairly imports a penalty for a specified breach of the contract by the defendant. Brown-Crummer Co. v. W. M. Rice Const. Co. (C. C. A.) 285 F. 673. The provision was -for the protection and benefit of the plaintiff. Leatherman v. Oliver, 151 Pa. 646, 25 A. 309; Wills v. Manufacturers’, etc., Gas Co., 130 Pa. 222, 18 A. 721, 5 L. R. A. 603. Certainly the language of the provision does not evidence a purpose to make a forfeiture by the defendant of its rights under the lease the sole consequence of its breach of its obligation, and to exempt it from liability to plaintiff for damages sustained by the latter in consequence of a well not being drilled as stipulated in the contract. That provision did not give 'the defendant the option to put an end to the obligation of the contract by breaching -it, and, by doing so, to deprive the plaintiff of the right to recover damages for failing to get that to which the contract entitled him. • The conclusion is that there was no error in the rulings complained of. The judgment is affirmed." }, { "docid": "17880023", "title": "", "text": "by reassigning the lease cannot fairly be deduced from the second agreement. The plaintiff was entitled to recover damages for the failure to drill the well. The cost of drilling a dry hole was stipulated to be $50,000. This sum represented the measure of damages the plaintiff was entitled to recover, as it had a direct interest in the well. Eysenbach v. Cardinal Pet. Co., 110 Okl. 12, 236 P. 10; Okmulgee P. & R. Co. v. Baugh, 111 Okl. 203, 239 P. 900; All-American Oil & Gas Co. v. Connellee (C. C. A.) 3 F.(2d) 107; Covington Oil Co. v. Jones (Tex. Civ. App.) 244 S. W. 287. There was no error in awarding that sum to the plaintiff. The additional demand of tho plaintiff for $12,000l was properly denied, as it was necessarily based on the theory that oil would he found in the well. By section 5976, C. O. S. 1921, the measure of damages recoverable for breach of contract is the compensation for the detriment proximately caused thereby, or what in the ordinary course of things would be likely to result therefrom. But the plaintiff had the burden of proof to establish its damages, and before it could be entitled to the value of a paying well, it was bound to prove that the well would have been of that character. There was no evidence to that effect, assuming the fact was susceptible of competent proof. There was no showing for a recovery beyond the $50,-000. A judgment fo-r the additional claim of $12,000 was therefore properly refused. The last question pertains to interest on the judgment. It was allowed from October 1, 19291, when the liability for the breach of the contract occurred. Interest was allowed only from date of judgment in Zurich Gen. Acc. & L. I. Co. v. Mid-Continent Petroleum: Co. (C. C. A.) 43 F.(2d) 358, where liability appeared to he uncertain during the pend-ency of the suit. In Concordia Ins. Co. v. School Dist. (C. C. A.) 40 F.(2d) 379, where the suit was to recover insurance for fire losses, interest" }, { "docid": "15393789", "title": "", "text": "WALKER, Circuit Judge. This was an action by the defendant in error (herein called plaintiff) to recover damages for the breach of a written contract between him and the plaintiff in error (herein called defendant). By the contract sued on plaintiff assigned to defendant an oil and gas lease on a described 45-acre tract of land, subject to oil and gas royalties reserved to the lessor landowner and to plaintiff. That contract contained the following provisions: “It is further understood and agreed that, in consideration of this transfer of the first party’s interest in said lease, the second party shall within 50 days from the date hereof erect a derrick, and shall within 100 days from the date hereof begin the drilling of a well for oil and gas on the 45 acres of land above described, and continue said drilling with reasonable diligence and dispatch until the said well is completed to the producing sand of this district, unless oil and gas are found in paying quantities at a lesser depth. * * * Time is the essence of this contract, and the same shall be null and void and of no effect unless said party of the second part shall begin the drilling of the well as provided however, on or before 100 days of the date hereof.” After the execution -of the contract the time for beginning the drilling of a well was, for a valuable consideration received by plaintiff, extended 30 days. The petition alleged that defendant erected a derrick on the leased land, but wholly failed to drill a well thereon. Pursuant to a written stipulation of tho parties the ease was tried by the court without a jury. The court made the following findings: “(1) The court finds that partios entered into the contract declared on in plaintiff’s petition as alleged therein. “(2) Tho court finds that defendant breached the contract, as alleged in plaintiff’s petition, and that plaintiff is entitled to recover damages heroin for the amount of the reasonable value, of cost of drilling a well on the land described in plaintiff’s" } ]

[ { "docid": "22699992", "title": "", "text": "financial straits when DeShazer broached the possibility of providing a loan. Petitioner also testified that DeShazer had stated that he needed quickly to get rid of the money that he was offering to petitioner because he had been hiding the money from his wife and was concerned that she would be upset if she discovered this secret; DeShazer had also stated at one point that if petitioner did not take the money soon, DeShazer would be tempted to spend it. At the close of the trial, petitioner moved for a “mistrial” because of the District Court’s refusal to instruct the jury as to entrapment. The District Court noted that the evidence of entrapment was “shaky at best,” ibid., but rather than premise its denial of petitioner’s motion on that ground, the court reaffirmed its earlier ruling that, as a matter of law, petitioner was not entitled to an entrapment instruction because he would not admit committing all elements of the crime charged. The jury subsequently found petitioner guilty. The United States Court of Appeals for the Seventh Circuit affirmed the District Court’s refusal to allow petitioner to argue entrapment: “When a defendant pleads entrapment, he is asserting that, although he had criminal intent, it was The Government’s deception [that implanted] the criminal design in the mind of the defendant.’ United States v. Russell, 411 U. S. 423, 436 . . . (1973); United States v. Rodgers, 755 F. 2d 533, 550 (7th Cir. 1985). We find this to be inconsistent per se with the defense that the defendant never had the requisite criminal intent. We see no reason to allow [petitioner] or any other defendant to plead these defenses simultaneously.” 803 F. 2d, at 327. We granted certiorari, 480 U. S. 945 (1987), to consider under what circumstances a defendant is entitled to an entrapment instruction. We hold that even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment. Because the parties agree as to the basics of" } ]

[ { "docid": "12083359", "title": "", "text": "entrapment defense deprived him of a fair trial. In accordance with the then-prevailing law of this circuit, the court refused the tendered entrapment instruction because Beverly refused to admit all elements of the offenses, including intent. Following the trial, the Supreme Court held in Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988), that a defendant may raise the entrapment defense even if he denies committing all elements of the offenses charged. Beverly contends that Mathews compels a reversal of his convictions. Mathews, however, does not hold that a defendant is always entitled to an entrapment instruction; it holds that a defendant is entitled to the instruction “whenever there is sufficient evidence from which a reasonable jury could find entrapment.” Id. 108 S.Ct. at 886. Because no reasonable jury could have found that Beverly was entrapped, the district court correctly refused, albeit for the wrong reason, to give the tendered instruction. In United States v. Kaminski, 703 F.2d 1004 (7th Cir.1983), this court identified several factors which are relevant to determining whether a defendant was entrapped: the character of the defendant, including any prior criminal record; whether the suggestion of criminal activity was initially made by the Government; whether the defendant was engaged in the criminal activity for profit; whether the defendant evidenced reluctance to commit the offense, overcome only by repeated Government inducement or persuasion; and the nature of the inducement of persuasion supplied by the Government. Id. at 1008. The application of these factors to Beverly’s situation demonstrates beyond a doubt that he was not entrapped. First, government inducement was non-existent in this case. The suggestion to create a diversion and contact someone who knew how to make bombs came from Williams. Williams, not Sergeant Murray, recruited Beverly to participate in the crime. Further, Murray offered Beverly $200 in earnest money after he had already agreed to make the bomb. Second, rather than evidencing any reluctance to join the criminal endeavor, Beverly demonstrated “considerable enthusiasm” in pursuing the conspiracy. Id. at 1009. Beverly asked Williams whether the present plan was part of the" }, { "docid": "13743677", "title": "", "text": "the government improperly targeted him due to his position in the Avengers and then ultimately entrapped him when it could not uncover legitimate evidence, the defendant invited rebuttal testimony from the government to explain why it proceeded with the investigation in the manner that it did. Agent Moran’s testimony was therefore properly admitted as relevant nonhearsay testimony. B. In Khalil’s second assignment of error, he contends that the district court improperly denied his request for a jury instruction on his defense of entrapment. “We review jury instructions as a whole to determine whether they fairly and adequately submitted the issues and applicable law to the jury.” United States v. Williams, 952 F.2d 1504, 1512 (6th Cir.1991). “A district court’s refusal to deliver a requested instruction is reversible only if that instruction is (1) a correct statement of the law, (2) not substantially covered by the charge actually delivered to the jury, and (3) concerns a point so important in the trial that the failure to give it substantially impairs the defendant’s defense.” Id. The Supreme Court has explained that the defendant is entitled to an entrapment instruction “whenever there is sufficient evidence from which a reasonable jury could find entrapment.” Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). A valid entrapment defense requires proof of two elements: (1) government inducement of the crime, and (2) lack of predisposition on the part of the defendant to engage in the criminal activity. United States v. Nelson, 922 F.2d 311, 317 (6th Cir.1990), cert. denied, 499 U.S. 981, 111 S.Ct. 1635, 113 L.Ed.2d 731 (1991). To be entitled to an entrapment instruction, the defendant must come forward with evidence to support both elements of the defense. See id. Upon review of the record, we conclude that Khalil has made an insufficient showing to warrant an entrapment instruction. In particular, he presented insufficient evidence from which a reasonable jury could find a lack of predisposition. Predisposition “focuses upon whether the defendant was an ‘unwary innocent’ or instead, an ‘unwary criminal’ who readily availed himself of the opportunity" }, { "docid": "23218346", "title": "", "text": "being used not for treatment of a pa tient, but for the purpose of assisting another in the maintenance of a drug habit or of dispensing controlled substances for other than a legitimate medical purpose”). Congress has given Dr. Singh the power to authorize the distribution of dangerous addictive drugs, and with that power, Congress also places upon him the responsibility to distribute them wisely within the course of his medical practice. The evidence clearly shows that Dr. Singh abused this power, and, therefore, we affirm the sufficiency of the evidence to convict. B. Next, Dr. Singh argues that the district court erred by refusing his request for a jury instruction on entrapment for Count 5, which charged Dr. Singh with writing a false prescription for Vickie Justice’s grandfather, Edward May. “An entrapment defense has two elements: [1] government inducement and [2] lack of predisposition to commit the crime on the defendant’s part.” United States v. Daniel, 3 F.3d 775, 778 (4th Cir.1993) (citing Mathews v. United States, 485 U.S. 58, 62-63, 108 S.Ct. 883, 886-87, 99 L.Ed.2d 54 (1988)), cert. denied, — U.S. —, 114 S.Ct. 1101, 127 L.Ed.2d 413 (1994). In order to receive an entrapment defense instruction, the defendant must produce “sufficient evidence from which a reasonable jury could find” that the government induced him to commit the charged offense. Mathews, 485 U.S. at 62, 108 S.Ct. at 886; United States v. Perl, 584 F.2d 1316, 1321 (4th Cir.1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1050, 59 L.Ed.2d 92 (1979). The district court’s decision not to give an entrapment instruction is a question of law which we review de novo. United States v. Ortiz, 804 F.2d 1161, 1164 & n. 2 (10th Cir.1986); see also United States v. Perrin, 45 F.3d 869, 871 (4th Cir.1995) (affirming a refusal to instruct on a defense of justification). Singh argues that Ms. Justice, acting as a government agent, induced him to write the false prescription for her “through the enticement of sex and other psychological manipulations.” (Brief of Appellant at 18.) Furthermore, he argues he had no predisposition to" }, { "docid": "8830419", "title": "", "text": "release, and restitution in the amount of $2,384,147,105.09. Poulsen’s Obstruction and Securities Cases were consolidated on appeal. II. On appeal of the Obstruction Case, Poulsen argues (1) the district court erred in denying his request to give an entrapment instruction; (2) the district court erred in denying his motion to suppress wiretap evidence; (3) the district court erred in allowing into evidence the amount of loss for the purpose of calculating his sentence. We affirm the district court’s decision on each of these issues. A. Poulsen argues that he came forward with sufficient evidence of entrapment and thus was entitled to an entrapment jury instruction. Jury instructions are reviewed as a whole to determine whether they fairly and adequately submitted the issues and applicable law to the jury. United States v. Khalil, 279 F.3d 358, 364 (6th Cir.2002). This court will reverse a district court’s denial of a jury instruction “if that instruc tion is (1) a correct statement of the law, (2) not substantially covered by the charge actually delivered to the jury, and (3) concerns a point so important in the trial that the failure to give it substantially impairs the defendant’s defense.” Id. (quoting United States v. Williams, 952 F.2d 1504, 1512 (6th Cir.1991)). A defendant is entitled to an entrapment instruction if there is sufficient evidence from which a reasonable jury could find entrapment. Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). The defense of entrapment has two elements: (1) government inducement of the crime, and (2) the defendant’s lack of predisposition to engage in the criminal activity. Khalil, 279 F.3d at 364. To warrant an entrapment instruction, the defendant must come forward with evidence that supports both elements. Id. If Poulsen had provided evidence from which a reasonable jury could have found both that the government induced the crime of obstruction of justice and that he was not predisposed to commit this crime, he would be entitled to an entrapment instruction. Id. at 364-65. In this case, however, Poulsen has not met this burden. The first element, government" }, { "docid": "3424359", "title": "", "text": "him as a witness or help in doing so. In fact, Juanita states in her brief that the government offered “to arrange” to produce Alarcon as a defense witness. Juanita therefore was not entitled to the missing witness instruction. This lack of unusual government control over Alarcon also justified the court’s refusal to allow Juanita’s counsel to comment upon Alarcon’s absence from the trial. U.S. v. Keplinger, 776 F.2d 678, 702-03 (7th Cir.1985), cert. denied, 476 U.S. 1183, 106 S.Ct. 2919, 91 L.Ed.2d 548 (1986) (“where the witness appears to be equally available or unavailable to both sides, we think it is well within the district court’s discretion to refuse to allow such argument.”) Id. at 703; see also U.S. v. Carroll, 871 F.2d 689, 692 (7th Cir.1989). C. Entrapment instruction Juanita claims the court erred in failing to give the jury an entrapment instruction as a theory of her defense. A defendant is entitled to a theory-of-defense instruction if (1) the instruction correctly states the law, (2) the theory is supported by the evidence, (3) the defense is not part of the charge, and (4) the failure to include the instruction would result in an unfair trial. United States v. Marren, 890 F.2d 924, 929 (7th Cir.1989); United States v. Douglas, 818 F.2d 1317, 1320-21 (7th Cir.1987). The evidence presented by the defendant “must demonstrate that there was sufficient evidence for a reasonable jury to find that the government induced her to commit the crime and that she was not predisposed to engage in the criminal conduct.” United States v. Molinaro, 877 F.2d 1341, 1349 (7th Cir.1989). We make a de novo determination as to whether the defendant presented sufficient evidence for a reasonable jury to find a lack of predisposition and government inducement. Marren, 890 F.2d at 930. A defendant can claim entitlement to an entrapment defense while denying commission of the crime. Mathews v. U.S., 485 U.S. 58, 62, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988) (“even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever" }, { "docid": "23561375", "title": "", "text": "entrapment defense. Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). Sababu argues that, in light of the Supreme Court’s ruling, his conviction should be overturned and remanded for a new trial because there was sufficient evidence to warrant an entrapment instruction. A valid entrapment defense is comprised of two elements: government inducement of a crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct. Mathews, 108 S.Ct. at 886; United States v. Marren et al., 890 F.2d at 929 (7th Cir.1989). In Mathews, the Supreme Court held that even if a defendant denies an element of a crime, he is entitled to an entrapment instruction “whenever there is sufficient evidence from which a reasonable jury could find entrapment.” Mathews, 108 S.Ct. at 886. Sababu does not claim that he was prevented from offering evidence of entrapment at trial but instead argues that there was sufficient evidence adduced at trial to support such an instruction. We disagree. Sababu has failed to make even a colorable showing that there was evidence warranting an entrapment instruction. The record is wholly devoid of evidence of his lack of predisposition to commit the crime or that he was induced by the government. Sababu argues in his brief that “many of the facts supporting the defense were brought out at trial.” Unfortunately, he does not direct us to those facts, and we were unable to find them on our own. Indeed, what the evidence does show is that Sababu was one of the initial members of the conspiracy and that he was integrally involved in the plans to procure weapons and violently escape from prison long before Lebosky or Cobb became government informants. As such, he clearly was predisposed to join the conspiracy and was in no way induced by the government into doing so. Sababu’s claim is without merit as he has failed to meet his burden of producing sufficient evidence of both the government’s inducement and his own lack of predisposition. See United States v. Hawkins, 823 F.2d 1020, 1024" }, { "docid": "23150559", "title": "", "text": "under Rule 403. United States v. Temple, 862 F.2d at 824; United States v. McManaman, 606 F.2d 919, 925-926 (10th Cir.1979); United States v. Biswell, 700 F.2d 1310, 1319 (10th Cir.1983). However, with respect to the evidence concerning Russell Sullivan’s possession of a gun and holster in Irving, Texas, we find no reversible error. We agree with the government’s contention at trial that the evidence was probative of charges made in the indictment concerning firearms. The trial judge has broad discretion to determine whether such evidence is relevant, and whether the probative value is outweighed by the danger of unfair prejudice. We do not believe the judge abused his discretion in his rulings concerning this evidence. We are convinced that the violations of the rules with respect to the “Mississippi cook” evidence and that concerning the sniper matter were clearly prejudicial, requiring remand for a new trial. V. Jury Instructions A. Entrapment Instruction All of the defendants except Russell Sullivan and Tammy Fisher argue that the district court erred in refusing to give an entrapment instruction as to Counts 2 through 5. The defendants requested an entrapment instruction prior to the close of the evidence, and again after the closing arguments. See XVII R. at 2153. The district judge did not articulate his reason for refusing to give the requested instruction, but he had earlier expressed the view that the defendants were not entitled to an entrapment instruction unless they admitted all the essential elements of the crimes charged. See XI R. at 745-46. Although that was formerly the law in the Tenth Circuit, see, e.g., United States v. Mabry, 809 F.2d 671, 688 (10th Cir.), cert. denied, 484 U.S. 874, 108 S.Ct. 33, 98 L.Ed.2d 164 (1987), the Supreme Court has clearly held to the contrary in Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988). In Mathews the Court held that a defendant is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment even if the defendant denies one or more elements" }, { "docid": "16908064", "title": "", "text": "140, 96 S.Ct. at 344. The indictment’s allegations that the attempted distributions or dispensations were “not ... for a legitimate medical purpose” satisfy that requirement. No more is necessary. The first two of Daniel’s “missing elements” simply repeat this requirement in other, less concise, terms. The third, that Daniel was a physician, need not be proven by the government. On the contrary, it is the source of the requirement that the government show a lack of legitimate medical purpose at all. Accordingly, we find the indictment sufficient. Ill In addition to challenging his indictment, Daniel claims he was entrapped. The district court rejected this defense and refused to instruct the jury on entrapment, concluding that Daniel hadn’t met his burden of production on the issue. Daniel argues he met that burden and, moreover, was entitled to a judgment of acquittal on all counts because the government failed to present sufficient evidence from which the jury could conclude beyond a reasonable doubt that he was predisposed to commit the crimes charged. At the very least, he contends, the jury should have been instructed on and permitted to consider his entrapment defense. We disagree and conclude, as did the district court, that Daniel failed to meet his burden of production on this issue. A An entrapment defense has two elements: government inducement and lack of predisposition to commit the crime on the defendant’s part. Mathews v. United States, 485 U.S. 58, 62-63, 108 S.Ct. 883, 886-887, 99 L.Ed.2d 54 (1988). To raise this affirmative defense a defendant must produce more than a scintilla of evidence that the government induced him to commit the charged offense. United States v. Perl, 584 F.2d 1316, 1321 (4th Cir.1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1050, 59 L.Ed.2d 92 (1979). Daniel didn’t do that. We see no inducement in the conduct of the government agents here. “Inducement” is a term of art: it involves elements of governmental overreaching and conduct sufficiently excessive to implant a criminal design in the mind of an otherwise innocent party. See Jacobson v. United States, — U.S. -, -, 112" }, { "docid": "14124396", "title": "", "text": "taken place,” Willis, 890 F.2d at 1102, this court’s analysis is at an end and the district court’s order denying suppression must be affirmed. B. Entrapment Instruction At trial, Yarbrough requested that the jury be given an entrapment instruction. The district court denied the request, concluding Yarbrough failed to adduce evidence he was induced to commit the crimes. On appeal, Yarbrough asserts the district court erred in refusing to give the jury his requested entrapment instruction. The district court’s conclusion that there was insufficient evidence to support an entrapment defense is reviewed by this court de novo. United States v. Scull, 321 F.3d 1270, 1274 (10th Cir.2003). The entrapment defense protects a defendant, who is not otherwise predisposed to commit a crime, from governmental coercion. Id. at 1275. It places in the hands of the jury the question of whether the criminal intent originated with the defendant or with the government. Id. A defendant is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment. For the purposes of determining the sufficiency of the evidence to raise the jury issue, the testimony most favorable to the defendant should be accepted. The defendant must show, either by presenting his own evidence or by pointing to evidence presented by the government in its case-in-chief, his lack of predisposition to commit the crime and government involvement and inducement. Id. (quotations and citations omitted). “To obtain an entrapment instruction, a defendant must establish two elements: first, the government agents must have induced the defendant to commit the offense; and second, the defendant must not have been otherwise predisposed to commit the offense, given the opportunity.” United States v. Nguyen, 413 F.3d 1170, 1178 (10th Cir.2005) (quotation omitted). Because Yarbrough failed to produce sufficient evidence at trial that the government agents induced him to commit the offenses, this court need not address the question of Yarbrough’s predisposition to commit the offenses. United States v. Shinderman, 515 F.3d 5, 15 n. 6 (1st Cir.2008); see also United States v. Millet, 510 F.3d 668, 675-76 (7th Cir.2007) (holding it" }, { "docid": "5325291", "title": "", "text": "viewing all the evidence and drawing all reasonable inferences in the light most favorable to the prosecution. United States v. Frank, 901 F.2d 846, 848 (10th Cir.1990). The defense of entrapment is generally an issue for the jury and not for the court. Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988). If there is any conflicting evidence upon which a jury could find no entrapment, the issue must be determined by the jury. See United States v. Fadel, 844 F.2d 1425, 1430 (10th Cir.1988); Martinez v. United States, 373 F.2d 810, 812 (10th Cir.1967). Entrapment will be found as a matter of law by a court only if all the elements of entrapment are uncontradicted. Fadel, 844 F.2d at 1430; United States v. Ortiz, 804 F.2d 1161, 1164 (10th Cir.1986). The elements required to find entrapment are: “first, government agents must have induced the defendant to commit the offense; and second, the defendant must not have been otherwise predisposed to commit the offense, given the opportunity.” Fadel, 844 F.2d at 1429; see also Mathews, 485 U.S. at 63, 108 S.Ct. at 886. Once a credible entrapment defense is raised, the prosecution has the burden of proving, beyond a reasonable doubt, that a defendant was not entrapped. United States v. Gurule, 522 F.2d 20, 25 (10th Cir.1975), cert. denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1976). The two elements of entrapment are closely related and often the same evidence and arguments will speak to both elements. The primary distinction between these elements is that inducement focuses on the government’s conduct while predisposition focuses on a defendant’s attitude or condition. B The inducement element of entrapment requires more than establishing that the government “solicited, requested or approached the defendant to engage in criminal conduct.” Ortiz, 804 F.2d at 1165. “ ‘Inducement’ may be defined as government conduct which creates a substantial risk that an undisposed person or otherwise law-abiding citizen would commit the offense. This definition implicates the obvious question of whether the defendant was eager or reluctant to engage in" }, { "docid": "13743678", "title": "", "text": "Court has explained that the defendant is entitled to an entrapment instruction “whenever there is sufficient evidence from which a reasonable jury could find entrapment.” Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). A valid entrapment defense requires proof of two elements: (1) government inducement of the crime, and (2) lack of predisposition on the part of the defendant to engage in the criminal activity. United States v. Nelson, 922 F.2d 311, 317 (6th Cir.1990), cert. denied, 499 U.S. 981, 111 S.Ct. 1635, 113 L.Ed.2d 731 (1991). To be entitled to an entrapment instruction, the defendant must come forward with evidence to support both elements of the defense. See id. Upon review of the record, we conclude that Khalil has made an insufficient showing to warrant an entrapment instruction. In particular, he presented insufficient evidence from which a reasonable jury could find a lack of predisposition. Predisposition “focuses upon whether the defendant was an ‘unwary innocent’ or instead, an ‘unwary criminal’ who readily availed himself of the opportunity to perpetrate the crime.” Mathews, 485 U.S. at 63, 108 S.Ct. 883. This Circuit has identified a number of factors that are relevant in determining predisposition: [1] the character or reputation of the defendant, including any prior criminal record; [2] whether the suggestion of the criminal activity was initially made by the Government; [3] whether the defendant was engaged in the criminal activity for profit; [4] whether the defendant evidenced reluctance to commit the offense, overcome only by repeated Government inducement or persuasion; and [5] the nature of the inducement or persuasion supplied by the government. United States v. Barger, 931 F.2d 359, 366 (6th Cir.1991). Where the evidence “clearly and unequivocally establishes that [the defendant] was predisposed,” the district court is justified in denying an entrapment instruction. Nelson, 922 F.2d at 317; see also United States v. Elder, 90 F.3d 1110, 1135 (6th Cir.1996), cert. denied, 519 U.S. 1181, 117 S.Ct. 993, 136 L.Ed.2d 873 (1997). In Elder, the defendant requested an entrapment instruction on the grounds that he was induced to commit the" }, { "docid": "23561374", "title": "", "text": "for prejudice inherently involved in the joint trial of co-conspirators and instructed the jurors to ward against such prejudice. The jury is presumed to have followed that clear instruction. Evans v. Young, 854 F.2d 1081, 1084 (7th Cir.1988). In summary, there was sufficient evidence to support the jury’s verdict against Delgado and the jury was properly instructed on how to evaluate the evidence. Delgado played a critical role in the weapons and escape conspiracy. Accordingly, we find that Delgado has failed to demonstrate “actual prejudice,” and the district court did not abuse its discretion in refusing to grant Delgado’s repeated motions for severance. VIII. Sababu’s Entrapment Claim At the time of trial, it was the law of this circuit that a defendant could not deny any element of the charged offense and still raise an entrapment defense. Sa-babu asserts that, because of this rule, he was barred from raising an entrapment defense at trial. After trial, however, the Supreme Court ruled that a defendant can deny an element of the crime and still raise an entrapment defense. Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). Sababu argues that, in light of the Supreme Court’s ruling, his conviction should be overturned and remanded for a new trial because there was sufficient evidence to warrant an entrapment instruction. A valid entrapment defense is comprised of two elements: government inducement of a crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct. Mathews, 108 S.Ct. at 886; United States v. Marren et al., 890 F.2d at 929 (7th Cir.1989). In Mathews, the Supreme Court held that even if a defendant denies an element of a crime, he is entitled to an entrapment instruction “whenever there is sufficient evidence from which a reasonable jury could find entrapment.” Mathews, 108 S.Ct. at 886. Sababu does not claim that he was prevented from offering evidence of entrapment at trial but instead argues that there was sufficient evidence adduced at trial to support such an instruction. We disagree. Sababu has failed to make" }, { "docid": "23150560", "title": "", "text": "instruction as to Counts 2 through 5. The defendants requested an entrapment instruction prior to the close of the evidence, and again after the closing arguments. See XVII R. at 2153. The district judge did not articulate his reason for refusing to give the requested instruction, but he had earlier expressed the view that the defendants were not entitled to an entrapment instruction unless they admitted all the essential elements of the crimes charged. See XI R. at 745-46. Although that was formerly the law in the Tenth Circuit, see, e.g., United States v. Mabry, 809 F.2d 671, 688 (10th Cir.), cert. denied, 484 U.S. 874, 108 S.Ct. 33, 98 L.Ed.2d 164 (1987), the Supreme Court has clearly held to the contrary in Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988). In Mathews the Court held that a defendant is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment even if the defendant denies one or more elements of the crime. 485 U.S. at 62, 108 S.Ct. at 886. The only issue before us, therefore, is whether the evidence warranted such an instruction. Although we must reverse on grounds already discussed, we consider the issue because of its likely significance on retrial. The defense of entrapment has two elements: “First, government agents must have induced the defendant to commit the offense; and, second, the defendant must not have been otherwise predisposed to commit the offense, given the opportunity.” United States v. Fadel, 844 F.2d 1425, 1429 (10th Cir.1988); Mathews, 485 U.S. at 63, 108 S.Ct. at 887. Inducement is “government conduct which creates a substantial risk that an undisposed person or otherwise law-abiding citizen would commit the offense.” United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir.1986). “[It] may take the form of ‘persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.’ ” Id. (quoting United States v. Burkley, 591 F.2d 903, 913 & n. 18 (D.C.Cir.1978), cert. denied, 440 U.S. 966, 99" }, { "docid": "8796524", "title": "", "text": "One, the conspiracy. On Counts Five, Six, Seven and Eight, the imposition of sentence was suspended and he was placed on probation for a period of five years on each count, to run concurrently. App. at 26a. This appeal by Pervez followed. II. While Pervez’s case was pending on appeal, the Supreme Court decided Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988), which held that “even if the defendant denies one or more of the elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.” Id. 108 S.Ct. at 886. Before Mathews and at the time Pervez was tried, the prevailing law in this circuit required the defendant to admit all the elements of an offense before he was entitled to a jury charge on entrapment. See, e.g., United States v. Hill, 655 F.2d 512, 514 (3d Cir.1981). Because this case is before us on direct appeal, we must apply Mathews. United States v. Berkery, 865 F.2d 587, 588 (3d Cir.1989) (citing Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (new rule for conduct of criminal prosecutions to be applied to cases pending on appeal and not yet final)). In Mathews, the Court reiterated the elements of a valid entrapment defense, which must include “government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in criminal conduct.” 108 S.Ct. at 886. See also United States v. El-Gawli, 837 F.2d 142, 147 (3d Cir.1988) (entrapment occurs when defendant who is not disposed to do so commits a crime as a result of the government’s inducement). “[T]o make an entrapment defense a defendant must come forward with some evidence as to both inducement and non-predisposition.” El-Gawli, 837 F.2d at 145. Moreover, the question of entrapment should be resolved by the jury, and not by the court. Mathews, 108 S.Ct. at 886. Nevertheless, we may find that a defendant was entrapped as a matter of law “[wjhere the evidence" }, { "docid": "23391797", "title": "", "text": "and credibility of that evidence were matters for the jury to determine. Accordingly, we must reverse Ortega’s conviction. On retrial, he shall be permitted to present an entrapment defense. 2. Labrada Although Labrada, unlike Ortega, did not object to the district court’s order precluding him from introducing affirmative evidence of entrapment, his counsel moved for an instruction on that defense at the jury instruction conference following the close of evidence. He contended that the evidence introduced by the prosecution was sufficient to show government inducement and that there was no evidence that he was predisposed to commit the crime. The district court denied the motion without explanation and reiterated that only Kissel would be allowed an entrapment instruction. On appeal, we conclude that, although a criminal defendant who has not introduced affirmative evidence of entrapment may nevertheless be entitled to a jury instruction on that defense should the government’s evidence justify such an instruction, Labrada was not so entitled under the circumstances of this case. As mentioned, the defense of entrapment contains two elements: government inducement of the crime and absence of predisposition on the part of the defendant. Poehlman, 217 F.3d at 697. “As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) (citation omitted). A defendant is entitled to an entrapment instruction whenever there is sufficient evidence in the record from which a reasonable jury could find entrapment. Id. at 62, 108 S.Ct. 883. Labrada asserts that the government led him to believe that the venture in which he engaged was legitimate, and that he had no intention of engaging in, or knowledge that he was engaging in, criminal conduct. In other words, he argues that Mendoza induced him to commit a crime by tricking him into thinking that his actions would be entirely legal. On that basis, he urges that the jury could have found that Mendoza’s conduct created “a substantial" }, { "docid": "23428717", "title": "", "text": "of the crime, he cannot successfully abandon the attempt because the crime itself has already been completed. We therefore adopt the Sixth Circuit’s approach in Shelton, specifically reject the Model Penal Code approach, and hold that the defense of abandonment is not warranted once a defendant completes the crime of attempt. We acknowledge, that “[a]fter a defendant has evidenced the necessary intent and has committed an act constituting a substantial step toward the commission of the offense, he has committed the crime of attempt, and can withdraw only from the commission of the substantive offense,” not the attempt of such offense. Shelton, 30 F.3d at 706. As discussed above, Young completed his attempt because he had the requisite intent and took a substantial step towards completion of the enticement crime, all supported by the evidence discovered in his car, his travel to the hotel and attempt to check in, and his search for Emily once he could not obtain the hotel room. Because Young completed “the essential elements” of his attempt, Shelton, 30 F.3d at 706, he cannot now claim that he abandoned that plan. We therefore conclude that the district court committed no error in its decision to refuse Young’s proffered abandonment instruction. 2. Entrapment Instruction Young also argues that the district court erred in refusing his proffered entrapment instruction. Because it is an affirmative defense, entrapment is a question of fact and generally decided by a jury. Kendrick, 423 F.3d at 807. However, a defendant is entitled to an entrapment instruction only where “there is sufficient evidence from which a reasonable jury could find entrapment.” Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). “[A] valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct.” Id. at 63, 108 S.Ct. 883. Therefore, to warrant an entrapment instruction, a defendant must first present evidence that the government induced the criminal conduct. See Jacobson v. United States, 503 U.S. 540, 553,112 S.Ct. 1535, 118 L.Ed.2d" }, { "docid": "23150561", "title": "", "text": "of the crime. 485 U.S. at 62, 108 S.Ct. at 886. The only issue before us, therefore, is whether the evidence warranted such an instruction. Although we must reverse on grounds already discussed, we consider the issue because of its likely significance on retrial. The defense of entrapment has two elements: “First, government agents must have induced the defendant to commit the offense; and, second, the defendant must not have been otherwise predisposed to commit the offense, given the opportunity.” United States v. Fadel, 844 F.2d 1425, 1429 (10th Cir.1988); Mathews, 485 U.S. at 63, 108 S.Ct. at 887. Inducement is “government conduct which creates a substantial risk that an undisposed person or otherwise law-abiding citizen would commit the offense.” United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir.1986). “[It] may take the form of ‘persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.’ ” Id. (quoting United States v. Burkley, 591 F.2d 903, 913 & n. 18 (D.C.Cir.1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1516, 59 L.Ed.2d 782 (1979)). Predisposition is the “defendant’s inclination to engage in the illegal activity for which he has been charged,” Ortiz, 804 F.2d at 1165, and “may be inferred from a defendant’s history of involvement in the type of criminal activity for which he has been charged, combined with his ready response to the inducement offer.” Id. The defendants must point to evidence of both inducement and lack of predisposition to establish a genuine issue concerning the origin of criminal intent. Id. Although we have variously described the degree of proof required to submit an entrapment defense to a jury, “the test is whether the evidence, regardless of amount, creates a factual issue.” Fadel, 844 F.2d at 1430. If the evidence on the question of entrapment is conflicting, therefore, the question should be submitted to the jury. We believe the evidentiary record in this case warranted a jury instruction on entrapment with respect to Counts 2, 3 and 4. These four defendants argue that they have no prior felony convictions and that" }, { "docid": "8157476", "title": "", "text": "not substantially covered by the charge actually delivered to the jury, and (3) concerns a point so important in the trial that the failure to give it substantially impairs the defendant’s defense. United States v. Williams, 952 F.2d 1504, 1512 (6th Cir.1991). An entrapment defense has two elements: (1) “government inducement of the crime, and [ (2) ] a lack of predisposition on the part of the defendant to engage in the criminal conduct.” Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); United States v. Khalil, 279 F.3d 358, 364 (6th Cir.2002). A defendant is entitled to an entrapment instruction “whenever there is sufficient evidence from which a reasonable jury could find entrapment,” Mathews, 485 U.S. at 62, 108 S.Ct. 883, but the defendant must provide enough evidence to support both elements of entrapment in order to receive the instruction. Khalil, 279 F.3d at 364-65. The instruction Demmler requested is identical to the Sixth Circuit Criminal Pattern Instruction 6.03. The instruction contains the two requirements for entrapment spelled out in Mathews, and neither party-disputes that the instruction is a correct statement of law. Demmler must show that it was plain error for the district court to have ruled that there was insufficient evidence to grant the instruction. The key question in determining predisposition is whether law enforcement planted a “criminal design in the mind of an otherwise law-abiding citizen or whether the government merely provided an opportunity to commit a crime to one who was already predisposed to do so.” United States v. Al-Cholan, 610 F.3d 945, 950 (6th Cir.2010) (quoting United States v. Pennell, 737 F.2d 521, 534 (6th Cir.1984)). The factors considered include: [t]he character or reputation of the defendant, including any prior criminal record; whether the suggestion of criminal activity was initially made by the Government; whether the defendant was engaged in criminal activity for profit; whether the defendant evidenced reluctance to commit the offense, overcome only be repeated Government inducements or persuasion; and the nature of the inducement or persuasion supplied by the Government. Id. (citation omitted). A district" }, { "docid": "15351160", "title": "", "text": "though he denied having any criminal intent. The Seventh Circuit affirmed the district court’s refusal to instruct the jury on entrapment, holding that a defendant may plead entrapment only if he admits committing all elements of the crime. The Supreme Court reversed, declaring that “even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.” Mathews, No. 86-6109, slip op. at 8. This language indicates that the Supreme Court now would permit a defendant to assert entrapment while denying any or all elements of the crime, including intent. Hence, while the result in Mathews is not inconsistent with the Henry rule, we conclude that Henry is no longer controlling law in this circuit. The question, then, is whether Ha-gler can point to sufficient evidence at trial to show that the jury could have had a reasonable doubt concerning entrapment. See also United States v. Nations, 764 F.2d 1073, 1079 (5th Cir.1985). Hagler’s burden has two parts: he must point to evidence indicating (1) governmental inducement that might cause him to act criminally where he otherwise would not, and (2) his lack of intent, before contact by governmental agents, to commit the crime charged. Henry, 749 F.2d at 207; see also Mathews, at —, 108 S.Ct. at 888. Although Hagler might have satisfied the second element through his own testimony, we find no evidence in the record indicating governmental inducement. Agent Tucker’s conduct amounted to no more than an offer of expertise. He had little contact with Hagler. He did not encourage Hagler to become involved in the conspiracy. Nor does the record show that Ha-gler was induced to participate by the efforts of Gary Griffin, under a theory that Griffin’s conduct should be attributed directly to the government. We have recognized that the government may entrap a defendant through the actions of an “ignorant pawn.” See United States v. Anderton, 629 F.2d 1044, 1047 (5th Cir.1980); United States v. Fischel, 686 F.2d 1082, 1085-86 (5th Cir.1982). However, not only" }, { "docid": "17140089", "title": "", "text": "in furtherance of the conspiracy, and more probably, several. The fact that there was sufficient evidence for the jury to find that William Jones was a participant in the conspiracy to rob Olympic Federal Bank is not enough to affirm his conviction. Jones also argues that the government did not present sufficient evidence to support the jury’s rejection of his entrapment defense. Viewing the evidence in the light most favorable to the government, as we must in reviewing Jones’s claim, see United States v. Gabriel, 810 F.2d 627, 637 (7th Cir.1987), we affirm the jury’s decision. In Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988), the Supreme Court held that a defendant is entitled to an entrapment instruction even if the defendant denies one or more elements of the crime whenever there is sufficient evidence from which a reasonable jury could find entrapment. In this case, Jones denied participating in the conspiracy to rob Olympic Federal Bank, and he did not testify at trial. The district court believed that there was sufficient evidence for the jury to receive an entrapment instruction with respect to Jones. A valid entrapment defense has two elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct. Mathews, 485 U.S. at 63, 108 S.Ct. at 886-87; United States v. Marren, 890 F.2d 924, 929 (7th Cir.1989). Although some courts view the entrapment defense as focusing exclusively on the government’s conduct, courts in the Seventh Circuit continue to determine whether a defendant is predisposed to commit the crime that the government agent may have induced the defendant to commit. See United States v. Evans, 924 F.2d 714, 716 (7th Cir.1991). In evaluating the defendant’s predisposition to commit the crime, we look to the defendant’s state of mind before his initial exposure to government agents. Marren, 890 F.2d at 930. The following factors are relevant to a defendant’s predisposition: (1) the character or reputation of the defendant; (2) whether the suggestion of criminal activity was originally made by the" } ]

[ { "docid": "5782982", "title": "", "text": "it is to fit within the regulation. This interpretation is supported by other parts of the regulations. For example, the second sentence of § 541.118(a) states that an employee must receive his full salary for any week in which he performs any work “without regard to the number of days or hours worked” (emphasis added). Similarly, § 541.118(c), which provides that failure to pay the full salary in the initial or terminal week of employment is not inconsistent with a salary basis of payment, states that only in such exceptional weeks will “the payment of a proportionate part of the employee’s salary for the time actually worked” satisfy the salary basis requirement. (emphasis added). See also 29 C.F.R. § 778.114(a), (b) (providing that a fixed salary may be paid for fluctuating hours, but implying by example that the salary, absent overtime, does not vary with the hours worked); 29 C.F.R. § 778.306 (stating in part that “[i]f an employee is compensated at a fixed salary for a fixed workweek and if this salary is reduced by the amount of the average hourly earnings for each hour lost by the employee in a short work week, the employee is, for all practical purposes, employed at an hourly rate of pay”). The conclusion that an FLSA-exempt executive’s pay may not vary as a function of the number of hours worked is also consistent with a common-sense understanding of salaried employment. Certainly a layman would understand that a salaried executive is a person paid an amount, on a weekly or less frequent basis, that bears no relationship to the number of hours worked in any particular week. The Ninth Circuit put this point as follows: A salaried employee is compensated not for the amount of time spent on the job, but rather for the general value of services performed. It is precisely because executives are thought not to punch a time clock that the salary test for “bona fide executives” requires that an employee’s predetermined pay not be “subject to reduction because of variations in the ... quantity of work performed”.... Abshire v." } ]

[ { "docid": "7467038", "title": "", "text": "to dismiss plaintiffs FLSA claims that accrued prior to October 20,2001 is GRANTED. Defendant moves for summary judgment with respect to plaintiff’s remaining FLSA claims. Del’s Mot. at 13-17; Def.’s Reply at 7-8. Defendant argues that plaintiff was not entitled to FLSA overtime pay as a matter of law during the period of time he worked in the FLSA-exempt position of CU-11 credit union examiner. Def.’s Mot. at 13-17. Defendant contends that plaintiff is exempt from the provisions of FLSA under the professional exemption. Def.’s Reply at 7. Although Mr. Corrigan has not challenged the classification of his position as FLSAexempt, see generally Compl.; Pl.’s Resp., he nonetheless argues that his remaining FLSA claims do not fail as a matter of law because he is “only exempt from certain provisions of the FLSA — not all of them.” Pl.’s Resp. at 2. Plaintiff acknowledges the Federal Circuit’s decision in Doe, 372 F.3d 1347, but asserts that Doe is distinguishable because it addressed claims by attorneys who “are exempt from all provisions of the FLSA.” See Pl.’s Resp. at 2. However, Mr. Corrigan has identified no authorities which support his view that he is “only exempt from certain provisions of the FLSA” and the court is not aware of any legal support for Mr. Corrigan’s view. Under the FLSA, an employee who works more than forty hours per week shall receive overtime pay “at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). If “an[] employee [is] employed in a bona fide executive, administrative, or professional capacity,” however, the overtime provisions of the FLSA do not apply. 29 U.S.C. § 213(a)(1). Under the implementing regulations of the Office of Personnel Management (OPM), an employee is presumed to be non-exempt and thus, eligible for overtime pay under the FLSA. 5 C.F.R. § 551.202(a). An employee is ineligible for overtime pay under the FLSA if the employing agency correctly determines that the employee “clearly meets the criteria for exemption.” 5 C.F.R. § 551.202(d). The exemption criteria are to be “narrowly construed" }, { "docid": "2887328", "title": "", "text": "to be withheld except as to persons ‘plainly and unmistakably within their terms and spirit.’ ” Auer, 519 U.S. at 462, 117 S.Ct. 905 (quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960)); see also Donovan v. Nekton, Inc., 703 F.2d 1148, 1151 (9th Cir.1983) (construing overtime exemption for “any employee employed as a seaman”). An employer who claims an exemption from the FLSA bears the burden of demonstrating that the exemption applies. See id. THE FAIR LABOR STANDARDS ACT I. Statutory and Regulatory Background Under the FLSA, employers generally must pay their employees at least one and one-half times their regular rate of pay for hours worked in excess of 40 in a week. See 29 U.S.C. § 207(a)(1). Employees who are employed in executive, administrative, or professional capacities are exempt from that overtime requirement. See 29 U.S.C. § 213(a)(1). The Secretary of Labor is authorized to define by rule the scope of those exemptions. See id. Under the Secretary’s rules, three tests must be satisfied for an employee to be considered an exempt executive, professional, or administrative employee: The “duties” test, see 29 C.F.R. § 541.1; the “salary level” test, see 29 C.F.R. § 541.1(f); and the “salary basis” test, see 29 C.F.R. § 541.118. Only the “salary basis” test is at issue in this case. An employee is considered to be paid on a salaried basis if “he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.118(a). In order to qualify for exempt status, “the employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked,” but “need not be paid for any workweek in which he performs no work.” Id. The rule makes an exception for “[pjenalties imposed in good faith for infractions of safety rules of major" }, { "docid": "19251037", "title": "", "text": "dispute as to the material facts. Fed. R.Civ.P. 56(e). The Court resolves all ambiguities and draws all factual inferences in favor of the nonmovant, but “only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007) (citing Fed.R.Civ.P. 56(c)). II. Discussion A. The “White Collar” Exemption As its Fifth Affirmative Defense, Gristede’s maintains that it is under no obligation to pay co-managers and department managers overtime wages because they are executive or administrative employees covered by the so-called “white collar exemption” to the FLSA, 29 U.S.C. § 213(a)(1), and corresponding NYLL regulations, 12 N.Y.C.R.R. §§ 142-2.2, 142-2.14. Plaintiffs contend they are entitled to summary judgment on this affirmative defense because Gristede’s cannot prove that class members perform work or earn compensation commensurate with executive or administrative employment. The FLSA requires that all hours worked in excess of forty hours per week be compensated at one and one-half times the minimum wage. 29 U.S.C. § 207(a)(1). The statute exempts from overtime coverage, however, “any employee employed in a bona fide executive, administrative, or professional capacity ... as such terms are defined and delimited ... by regulations of the Secretary [of Labor].” Id. § 213(a)(1). The regulations promulgated by the Secretary of Labor (the “Secretary”) define an executive, administrative, or professional employee as someone who performs certain duties and is paid on a salary basis at a rate of not less than $455 per week. See 29 C.F.R. §§ 541.100, 541.600. The requirements are substantially the same under the NYLL. The parties do not dispute that co-managers and department managers receive compen sation that meets the minimum amount required. Courts apply the salary basis test to distinguish bona fide white collar employees from non-exempt, hourly employees, “ie., employees who may be disciplined ‘by piecemeal deductions from ... pay.’ ” Yourman v. Giuliani, 229 F.3d 124, 130 (2d Cir.2000) (quoting Auer v. Robbins, 519 U.S. 452, 456, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)). Am employee is paid on a salary basis if the employee receives “a predetermined amount”" }, { "docid": "10022620", "title": "", "text": "of 1999, 282 of SCE & G’s 285 exempt employees worked overtime. Sixteen of those employees were asked to complete tasks normally performed by nonexempt workers. The seventeen plaintiffs in this case were administrative employees asked to perform nonexempt duties during the outages in question. None of these employees were paid overtime wages for this work. Each received his normal manage ment salary during this time, and each returned to his regular job after the outage tasks were complete. Plaintiffs filed this suit in state court alleging that SCE & G violated Section 7(a) of FLSA by failing to compensate them for overtime worked during these two fueling outages. Specifically, plaintiffs claimed that they were entitled to be paid time and a half for overtime hours worked at non-exempt tasks during these five-week periods. SCE & G removed the case to the United States District Court for the District of South Carolina and, following the completion of discovery, moved for summary judgment. The district court granted SCE & G’s motion on December 27, 2001. Plaintiffs appeal. II. Section 7(a) of FLSA mandates that employees be paid at least time and a half for any time they work over forty hours a week. 29 U.S.C § 207(a). However, those employed in an executive, administrative, or professional capacity are subject to a specific exemption from this overtime pay eligibility. 29 U.S.C. § 213. The issue in this case is whether plaintiffs at all times fit within this exemption and therefore were not entitled to overtime pay. The Department of Labor has promulgated specific regulations implementing the FLSA exemptions. See 29 C.F.R. §§ 541.1, 541.2, 541.3. These regulations state that in order to be exempt from overtime pay requirements, an employee must be paid on a salaried rather than an hourly basis, and his employment must be of a bona fide administrative, professional, or executive nature. Id. Whether an employee qualifies for this exemption is determined by applying two tests contained in these regulations. Under the “long test,” an employee’s duties are examined on a workweek basis. If an employee spends more than" }, { "docid": "16710651", "title": "", "text": "reasons, sickness, or disability. On appeal, the City argues that the district court incorrectly applied the salary test, and that the mere possibility of salary reduction is insufficient to prevent an employee from being a salaried executive. We reverse and remand for entry of judgment in favor of the City. In general, the FLSA requires employers to pay overtime compensation for hours worked in excess of a 40-hour work week. See 29 U.S.C. § 207. The FLSA, however, exempts from overtime pay provisions “any employee employed in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). An employee may qualify for the executive exemption if the employee meets both the “duties” and “salary” requirements set forth in 29 C.F.R. § 541.1(a)-(f). The regulations define a “bona fide executive” as an employee with supervisory duties who is paid on a salaried basis. Id. The test for whether an employee is paid on “a salary basis” is set out at 29 C.F.R. § 541.118(a) (1991): An employee will be considered to be paid ‘on a salary basis’ within the meaning of the regulations if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Subject to the exceptions provided below, the employee must receive his full salary for any week in which he per forms any work without regard to the number of days or hours worked. The primary function of assistant fire chief is to serve as the administrative and supervisory head of the fire division. The chiefs supervise between 10 and 200 individuals and participate in hiring, firing, and promotional decisions. The chiefs admit the supervisory nature of their duties. The chiefs claim that they do not qualify as bona fide executives because they are not paid on a salaried basis. The city pays the chiefs (on a bi-weekly basis) an annual salary of $56,114 or more. The City has determined" }, { "docid": "4974298", "title": "", "text": "JOHN C. PORFILIO, Circuit Judge. In this appeal, we are asked to decide whether plaintiffs, lieutenants, captains, and division chiefs in the Denver Police Department, are salaried employees exempt from the overtime requirement of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207. This resolution pivots on our reading of 29 C.F.R. § 541.118(a), which states an employee whose salary is “subject to reduction because of variations in the quality or quantity of the work performed,” is not exempt from payment of overtime. Because we read the language of the regulation to mean what it says, that the possibility of reduction defeats salaried status, we conclude plaintiffs are not exempt from the FLSA’s overtime requirement. We reverse. I. Generally, the FLSA requires all employers, including state and local governments, to pay their employees a minimum wage for a 40-hour work week. 29 U.S.C. § 206. Hours worked over the 40-hour week must be compensated at an overtime rate of time and a half. 29 U.S.C. § 207. However, under 29 U.S.C. § 218(a)(1), payment of overtime does not apply to “any employee employed in a bona fide executive, administrative, or professional capacity....” Congress delegated fleshing out this status to the Department of Labor (DOL), which devised a “short test” in 29 C.F.R. § 541.1, providing: The term “employee employed in a bona fide executive * * * capacity ... shall mean any employee: (a) Whose primary duty consists of the management of the enterprise in which he is employed.... (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretionary powers; and (e) Who does not devote more than 20 percent ... of his hours of work in the workweek to activities which are not directly or closely related to the performance of" }, { "docid": "20669346", "title": "", "text": "HATCHETT, Chief Judge: In this action based on the Fair Labor Standards Act, we affirm the district court’s ruling that the appellee avoided liability through the exercise of the “window of correction.” BACKGROUND On October 1, 1992, appellants, nineteen present and former management employees of appellee City of Hollywood (the City), filed this lawsuit pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., in the Southern District of Florida. Appellants alleged that the City willfully failed to pay them overtime as required under section 207(a)(1), which provides that covered employers must compensate their employees at a rate of at least time and one-half for all hours worked in excess of forty per week. 29 U.S.C. § 207(a)(1) (1994). Appellants sought unpaid overtime compensation, liquidated damages, attorneys’ fees and costs. The FLSA exempts from section 207(a)(1) any employee employed in a bona fide executive, administrative or professional capacity who receives payment on a salary basis. See 29 U.S.C. § 213(a)(1) (1994); 29 C.F.R. §§ 541.1-.3 (1995); see also Avery v. City of Talladega, 24 F.3d 1337, 1340 (11th Cir.1994). An employee is considered paid “on a salary basis” if he or she “regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his [or her] compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.118(a) (1995). Thus, to claim exemption from the FLSA’s overtime pay requirements pursuant to section 213(a)(1), an employer must prove that the relevant employees meet two tests: the job duties test and the salary basis test. Appellants alleged in their complaint that they did not fall within this exemption because, among other things, (1) “their pay [was] subject to reductions for absences of part of a day”; and (2) the City “reduce[d] their accrued leave in hourly increments for partial day absences.” Upon appellants’ motion, the district court bifurcated this lawsuit, deciding to consider first the salary basis test issues. On May 2, 1995, in addressing appellants’ motion" }, { "docid": "16710650", "title": "", "text": "JOHN R. GIBSON, Circuit Judge. The City of Omaha, Nebraska, appeals from summary judgment entered against it on claims filed by William C. McDonnell, Robert J. Warsocki, Michael Dineen, Don E. Brunken, and Verne Beers, all' assistant fire chiefs of the Omaha Fire Division. The chiefs sought a declaratory judgment that they were entitled to overtime wage benefits specified in sections 1-19 of the Fair Labor Standards Act. 29 U.S.C. §§ 201-219 (1988 and Supp. Ill 1991). The City contended that the chiefs were not entitled to these overtime benefits because the chiefs were employed in an executive or administrative capacity, and therefore, exempt from- the Act’s overtime provisions under 29 U.S.C. § 213(a)(1). The district court rejected this argument, applying regulations which establish a duties and salary test to determine whether an employee is a bona fide executive. See 29 C.F.R. § 541.1(a)-(f) (1991). The district court concluded that the City failed to meet the salary test because the chiefs’ pay was subject to reduction for absences of less than a day for personal reasons, sickness, or disability. On appeal, the City argues that the district court incorrectly applied the salary test, and that the mere possibility of salary reduction is insufficient to prevent an employee from being a salaried executive. We reverse and remand for entry of judgment in favor of the City. In general, the FLSA requires employers to pay overtime compensation for hours worked in excess of a 40-hour work week. See 29 U.S.C. § 207. The FLSA, however, exempts from overtime pay provisions “any employee employed in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). An employee may qualify for the executive exemption if the employee meets both the “duties” and “salary” requirements set forth in 29 C.F.R. § 541.1(a)-(f). The regulations define a “bona fide executive” as an employee with supervisory duties who is paid on a salaried basis. Id. The test for whether an employee is paid on “a salary basis” is set out at 29 C.F.R. § 541.118(a) (1991): An employee will be considered to be paid ‘on" }, { "docid": "22827683", "title": "", "text": "OPINION AND ORDER SOTOMAYOR, District Judge. In this collective action brought under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201 et seq., the Court has before it two motions. The first, an order to show cause filed by plaintiffs, seeks the Court’s approval for distribution of class notice and opt-in consent forms to potential plaintiffs. By implication, this motion asks the Court to decide whether plaintiffs’ action may be maintained as a collective action under the FLSA. The second motion, brought by defendant, seeks judgment on the pleadings or, in the alternative, summary judgment. For reasons discussed below, plaintiffs’ motion is granted and defendant’s motion is denied without prejudice to bringing a motion for summary judgment after the close of discovery. I. Background The FLSA requires covered employers to pay their employees overtime wages, at the rate of time and a half, for hours in excess of 40 hours worked in a single week. 29 U.S.C. § 207. Exempt, however, from the Act’s overtime requirements are employees who are “employed in a bona fide executive, administrative, or professional capacity ... (as such terms are defined and delimited from time to time by regulations of the Secretary [of Labor]).” 29 U.S.C. § 213(a)(1). Because the FLSA is a remedial act, this exemption must be narrowly construed and the employer bears the burden of showing that a claimed exemption applied to its employees. See Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir.1991) (citing Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974), and Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207, 211, 79 S.Ct. 260, 264, 3 L.Ed.2d 243 (1959)). The administrative regulations promulgated pursuant to the FLSA establish both a salary test and a duties test for determining whether an employee is employed “in a bona fide executive, administrative or professional capacity.” See 29 C.F.R. § 541.1 (executive); § 541.2 (administrative), § 541.3 (professional). The salary test contains two elements: a requirement that the exempt employee receive no less than a specified level of compensation," }, { "docid": "22970954", "title": "", "text": "MICHAEL DALY HAWKINS, Circuit Judge: The City of Los Angeles (the “City”) and the City’s Department of Water and Power (the “DWP”) (collectively, the “Defendants”) appeal from a grant of summary judgment to the plaintiff-employees on their Fair Labor Standards Act (“FLSA”) claim for overtime wages. The Defendants contend the employees are exempt from the overtime requirements of the FLSA because they are professional, executive or administrative employees who were at all times compensated on a salary basis. The employees do not dispute that their duties were executive, professional or administrative, but argue that they were not compensated in a manner consistent with a salary basis because they were subject to partial week suspensions for violations of rules unrelated to safety. I. BACKGROUND REGULATIONS AND CASELAW A. The Salary Basis Test Under Wage and Hour Administration regulations, an employee is considered to be paid on a salary basis if his pay “is not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.118(a). The salaried status of an employee, however, is not affected by “penalties imposed in good faith for infractions of safety rules of major significance.” 29 C.F.R. § 541.118(a)(5). Nor does a suspension of a salaried employee for a full week change the salaried status, because the policy is “subject to the general rule that an employee need not be paid for any workweek in which he performs no work.” 29 C.F.R. § 541.118(a). Thus, a disciplinary suspension of less than a full workweek for rea sons other than major safety violations can result in a failure to meet the “salary basis test” required for overtime exemption. B. Auer v. Robbins In Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), the Supreme Court addressed the proper application of this salary basis test to employees of the St. Louis Metropolitan Police Department who sought overtime wages under the FLSA. Id. at 455, 117 S.Ct. 905. The employees claimed theib pay was “subject to” reduction for disciplinary infractions because the department manual provided for partial week" }, { "docid": "463495", "title": "", "text": "pursuant to F.R.A.P. 4(a)(3), seeking review of the injunction. II. The FLSA forbids an employer from employing any worker “for a workweek longer than forty hours unless such employee receives compensation ... at a rate not less than one and one-half times the [worker’s] regular rate” for the excess hours. 29 U.S.C. § 207(a)(1). The Act exempts “any employee employed in a bona fide executive, administrative, or professional capacity ... as such terms are defined and delimited from time to time by regulations of the Secretary_” 29 U.S.C. § 213(a)(1). Defendant Claridge claims the district court’s injunction is improper because the exemption for executive employees applies to the pit bosses, floorpersons and boxpersons. In the district court, Claridge had the burden of proving the applicability of the exemption. Coming Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974) (“general rule”). The definition of executive employee found in the regulations includes employees “compensated on a salary basis of not less than $250 per week” engaged primarily in managerial tasks. 29 C.F.R. 541.1(f); 29 C.F.R. 541.119(a). The regulations define “salary basis” in some detail. Salary must be “a predetermined amount” received in full “for any week in which he performs any work without regard to the number of days or hours worked.” 29 C.F.R. 541.118(a). Deductions may not be made “for absences occasioned by the employer or by the operating requirements of the business,” such as “when work is not available.” Id. at (a)(1). Deductions for activities such as jury duty or military leave are also not allowed. Id. at (a)(4). Deductions are allowed for absences “for a day or more” either for personal reasons or due to sickness if the deduction follows a disability plan. Id. at (a)(2) & (a)(3). Improper deductions do not require a finding of nonsalary status, but this determination “depend[s] on the facts in the particular case.” Id. at (a)(6). The regulations also specifically allow for “additional compensation besides the salary....” 29 C.F.R. 541.118(b). The regulation gives three examples of such compensation above salary, the first of a commission based" }, { "docid": "7854443", "title": "", "text": "POLLACK, Senior District Judge: PRELIMINARY This case arises under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (“FLSA” or “the Act”). The Act requires public law enforcement agencies to provide overtime compensation to their employees for hours worked in excess of a prescribed work week. 29 U.S.C. § 207(a)(1), (k). Plaintiffs-appellants, a Detective Lieutenant, two Detective Sergeants, and a Sergeant, are employees of a public law enforcement agency. Unless exempted under the FLSA, they are entitled to receive overtime pay for the hours that they have worked in excess of their prescribed work period. The Act exempts from the FLSA’s overtime compensation provisions “any employee in a bona fide executive, administrative, or professional capacity ... as such terms are defined and delimited ... by regulations of the Secretary [of Labor].” 29 U.S.C. § 213(a)(1). The Secretary of Labor’s regulations provide that an employee qualifies for the “bona fide executive” exemption if the employee satisfies a “duties” test and is paid on a “salary basis.” 29 C.F.R. § 541.1. Appellants concede that they perform the duties of an “ ‘employee employed in a bona fide executive ... capacity.’ ” Id. § 541.1(a)-(e) (quoting 29 U.S.C. § 213(a)(1)). Therefore, if appellants are compensated on a salary basis, as defined by 29 C.F.R. § 541.118, they are not entitled to overtime compensation under the FLSA. Appellants commenced a civil rights action in the district court pursuant to the FLSA, 29 U.S.C. § 201 et seq., alleging that they are entitled to overtime compensation. Plaintiffs moved for partial summary judgment on the issues of liability, statute of limitations, and liquidated damages pursuant to Fed.R.Civ.P. 56. The defendant moved for summary judgment dismissing plaintiffs’ complaint in its entirety. On December 8, 1997, the district court issued a written Memorandum and Order granting defendant’s motion for summary judgment and dismissing appellants’ complaint in its entirety. Judgment dismissing the complaint in its entirety was entered on December 9, 1997. This appeal ensued. BACKGROUND According to the Department of Labor’s regulations, [a]n employee will be considered to be paid “on a" }, { "docid": "8402542", "title": "", "text": "The Lambert Airport operates twenty-four hours a day, seven days a week, with a work force of 625 City employees and 21,600 airline employees. AOSs staff the Airport’s Operations and Communications Center, a unit created to be the eyes and ears of senior management at all times. During the period in question, an AOS who worked more than forty hours in a particular week had the choice of being paid for this overtime at his or her regular rate, or “banking” an hour of paid vacation time for each hour of overtime worked. In 1994, plaintiffs commenced this FLSA damage action for unpaid overtime, see 29 U.S.C. § 216(b), claiming they should have been paid for overtime at time-and-one-half rates. The City claims AOSs are “bona fide executive, administrative, or professional” employees exempt from FLSA’s overtime requirements under § 213(a)(1). This exemption is an affirmative defense on which an employer has the burden of proof. See Murray v. Stuckey’s, Inc., 50 F.3d 564, 566 (8th Cir.), cert. denied, 516 U.S. 863, 116 S.Ct. 174, 133 L.Ed.2d 114 (1995). The FLSA grants the Secretary of Labor broad authority to define the terms “executive, administrative, and professional” employees. See 29 U.S.C. § 213(a)(1); Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 909, 137 L.Ed.2d 79 (1997). The Secretary has promulgated extensive regulations delimiting the types of employees who fall within this exemption. See 29 C.F.R. Part 541. The regulations treat the three exemption categories separately. Salary Basis. A criterion common to all three exemption categories is that the employee must be compensated on a salary basis. See 29 C.F.R. §§ 541.1(f), 541.2(e), 541.3(e). An employee is paid “on a salary basis” if he or she receives a predetermined amount of compensation each pay period that is not subject to being reduced because of the quality or quantity of the work. See 29 C.F.R. § 541.118(a). It is undisputed that the AOSs received a predetermined amount of pay each period which was not subject to reduction. The district court nonetheless concluded they were not paid on a salary basis for purposes of" }, { "docid": "17731746", "title": "", "text": "guidelines. C. Claims Under the FLSA The FLSA requires compensation at one and a half time the regular rate when an employer requires the employee to work more than forty hours per week. See 29 U.S.C. § 207(a)(2). To establish an FLSA claim, plaintiff must prove that: (1) he was an employee who was eligible for overtime (i.e., that he was not exempt from the Act’s overtime pay requirements); and (2) that he actually worked overtime hours for which he was not compensated. See id.; Barry v. Town of Elma, 2005 WL 711842 at *2, 2005 U.S. Dist. LEXIS 5548 at *5-*6 (W.D.N.Y.2005). Because the FLSA is a remedial act, its exemptions are narrowly construed. See Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir.1991); Burke v. County of Monroe, 225 F.Supp.2d 306, 317 (W.D.N.Y.2002). The employer bears the burden of proving that an employee is exempt, by demonstrating that the employee serves in a bona fide executive, administrative, or professional capacity. Id.; 29 U.S.C. § 214(a)(1). Here, defendant claims that plaintiff is exempt as an administrative employee. Whether an employee’s duties are “administrative” within the meaning of the FLSA is a question of law. See Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986). The Department of Labor’s (“DOL”) regulations set forth a “short test” to determine an employee’s exempt status. In addition to other exemptions, the regulations exempt from the FLSA any employee who is “employed in a bona fide administrative capacity”: that is, whose weekly wage exceeds the applicable statutory threshold, whose primary duty is office or non-manual work directly related to management policies or general business operations of the employer, and which involves the exercise of discretion and independent judgment. 29 U.S.C.S. § 201 et seq.; 29 C.F.R. § 541.200(a). It is undisputed that plaintiffs wages satisfy the statutory threshold. Accordingly, whether he was “employed in a bona fide administrative capacity” turns upon whether he performed administrative duties, and exercised discretion and independent judgment. 1. Administrative Duties At the outset, I note that the DOL’s Interpretive Regulations" }, { "docid": "12375866", "title": "", "text": "CALABRESI, Circuit Judge. I. Background The plaintiffs are high-ranking police officers who brought this class action against their employer, the County of Nassau Police Department (“Department”), alleging a violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. The FLSA generally requires employers to provide overtime compensation for hours worked in excess of a prescribed work week. 29 U.S.C. § 207. On appeal, it is not disputed that the defendants failed to pay the plaintiffs overtime for at least two years. The defendants will thus be liable to the plaintiffs unless the plaintiffs fall within an exception to the coverage of the FLSA. Since the only exemption the defendants claim with respect to the plaintiff officers is the “bona fide executive” exemption, the sole issue before us is whether the Department was freed from the overtime requirements of the FLSA by that provision. “Bona fide executives,” who are not subject to the FLSA overtime requirements, 29 U.S.C. § 213(a)(1), are defined in pertinent part as employees who are remunerated, inter alia, on a salary basis, 29 C.F.R. § 541.1(f). To be compensated on a salary basis, an employee must regularly be paid a predetermined amount that “is not subject to reduction because of variations in the quality or quantity of the work performed,” 29 C.F.R. § 541.118(a), with the exception that the employee may be fined “for infractions of safety rules of major significance,” 29 C.F.R. § 541.118(a)(5). At trial, the plaintiffs maintained that they did not fall within the “bona fide executive” exemption because they were not paid on a salary basis. In support of this claim, they adduced Article 9, Rule 6.3.e of the Nassau County Police Department Rules and Regulations, which the parties agreed were gener ally binding on the plaintiffs. Rule 6.3.e provides that: [for] any violation of the Rules and Regulations of the Police Department, County of Nassau ... the Commissioner of Police has the power to discipline a member of the Force or Department by: 1) Reprimand. 2) Fine. 3) Suspension with or without pay. 4) Dismissal or removal from" }, { "docid": "9483629", "title": "", "text": "946, 88 S.Ct. 1031, 19 L.Ed.2d 1134 (1968). ANALYSIS The FLSA requires employers to pay overtime compensation to employees who work more than 40 hours per regular workweek. 29 U.S.C. § 207 (1995). Under the FLSA’s enforcement provisions, employers violating the Act may be required to pay uncompensated overtime, together with civil penalties and liquidated damages. 29 U.S.C. § 216 (1995). The FLSA exempts from its overtime requirements, however, any salaried employee who works in a bona fide executive, administrative, or professional capacity. 29 U.S.C. § 213(a)(1). The district court found that Cowart and Durbano are exempt employees pursuant to 29 U.S.C. § 213(a)(1) because they were paid a salary and qualified as administrative employees. We agree. A. Salary Test To be exempt, an employee must primarily have managerial or supervisory duties. 29 C.F.R. § 541.103-541.117. The employee must earn wages of at least $250 per week, and must be paid on a “salary” basis. 29 C.F.R. § 541.117-541.118. Under the regulations, an employee is a salaried and not an hourly employee if that person “regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed....” 29 C.F.R. § 541.118(a). If employees are covered by a policy which allows deductions in pay for disciplinary reasons, or other deductions in pay as a practical matter, that person cannot be considered an exempt employee. Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 911, 137 L.Ed.2d 79 (1997). This standard is met “if there is either an actual practice of making such deductions or an employment policy that creates a ‘significant likelihood’ of such deductions.” Auer, 117 S.Ct. at 911. An employer may, however, make deductions from a salaried employee’s wages for absences of a full day or more for personal reasons or sickness. 29 C.F.R. § 541.118(a)(2) Although Cowart and Durbano received their full weekly salary every week, they nonetheless contend that Ingalls’s method of compensating them did not meet the" }, { "docid": "6101232", "title": "", "text": "OPINION BRUGGINK, Judge. This overtime pay dispute is before the court on the parties’ cross-motions for summary judgment. The motions have been fully briefed and argued, and are ready for disposition. For the reasons set forth below, both motions are denied. BACKGROUND Plaintiffs are or were approximately 300 “Supervisory Border Patrol Agents” and “Supervisory Aircraft Pilots” employed by the U.S. Border Patrol at grades ranging from GS-11 to GS-14. They worked an unknown amount of overtime but were not paid for it because defendant considers “Supervisory Border Patrol Agents” and “Supervisory Aircraft Pilots” to be exempt from the Fair Labor Standard Act’s overtime pay requirements because they are “executives.” The Fair Labor Standards Act (“FLSA”), 29 U.S.C.A. §§ 201-219 (West Supp.1997), requires an employer, including the federal government, to compensate an employee for overtime work at a rate of at least one-and-one-half times the employee’s regular rate of pay. Id. § 207(a). However, “bona fide executive, administrative, or professional” employees are exempt from the FLSA’s overtime provisions. Id. § 213(a). The Department of Labor (“DoL”) is primarily responsible for administering FLSA. See id. § 204. But in the case of most federal employees, including plaintiffs, the statute is administered by the Office of Personnel Management (“OPM”). See id. §§ 204(f), 213(a). Plaintiffs maintain that if DoL regulations were applied to them instead of OPM regulations, they would be considered exempt from FLSA’s overtime pay requirements. In order for a position to be exempt under DoL regulations defining executives, an employee must, among other things, be paid on a salary basis. See 29 C.F.R. pt. 541 (1997). This means the employee must receive “on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.118(a). The salary-basis test is further refined to permit certain penalty deductions from pay as consistent with salaried employment, but disallow others. Consistent with salaried status, employees may be suspended without pay for “infractions of safety rules of major" }, { "docid": "10022621", "title": "", "text": "appeal. II. Section 7(a) of FLSA mandates that employees be paid at least time and a half for any time they work over forty hours a week. 29 U.S.C § 207(a). However, those employed in an executive, administrative, or professional capacity are subject to a specific exemption from this overtime pay eligibility. 29 U.S.C. § 213. The issue in this case is whether plaintiffs at all times fit within this exemption and therefore were not entitled to overtime pay. The Department of Labor has promulgated specific regulations implementing the FLSA exemptions. See 29 C.F.R. §§ 541.1, 541.2, 541.3. These regulations state that in order to be exempt from overtime pay requirements, an employee must be paid on a salaried rather than an hourly basis, and his employment must be of a bona fide administrative, professional, or executive nature. Id. Whether an employee qualifies for this exemption is determined by applying two tests contained in these regulations. Under the “long test,” an employee’s duties are examined on a workweek basis. If an employee spends more than 20% of his hours in each workweek performing non-administrative duties, then he may not be treated as exempt under this test. 29 C.F.R. § 541.2. However, if an employee earns a salary of more than $250 per week, his exempt status is determined using a “short test.” Under this test, an employee is exempt from the overtime provisions so long as (1) the employee’s primary duty consists of the performance of office or non-manual work directly related to management or general business operation; and (2) the employee customarily and regularly exercises discretion and independent judgment. 29 C.F.R. § 541.214. All of the plaintiffs in this case earn more than $250 a week, and they admit that under ordinary circumstances they are properly classified under the short test as administrative employees exempt from the overtime provision of FLSA. They argue, however, that during the five weeks out of every eighteen months that they perform nonexempt outage-related tasks, their status should change. We disagree. A. First, plaintiffs contend that each workweek should be viewed independently for purposes" }, { "docid": "23468145", "title": "", "text": "exempt from entitlement to overtime payments under § 213 of the FLSA because she is employed in a professional capacity. They raised this issue for the first time in their motion for summary judgment filed on March 3, 1996, more than three months after filing their answer. Magana does not dispute the finding that nurses are “professionals” within the meaning of the FLSA. E.R. 167. She argues first that Defendants’ exemption argument is an affirmative defense that was not raised in their initial responsive pleading and was, therefore, waived. Magana further contends that, even if Defendants did not waive the exemption defense, she remains covered by the FLSA overtime provisions because the CNMI failed to establish that her PN II position meets the salary test used by courts to determine whether employees are exempt under § 213(a). We do not meet the merits of this contention because we agree that the Appellees initially waived their “professional capacity” FLSA defense by failing to plead it in a timely fashion, and because we conclude the district court erred by allowing the Defendants to raise the defense in a motion for summary judgment without first determining whether the delay caused prejudice to Maga-na. The FLSA requires covered employers to provide overtime compensation equal to one and one-half times the regular rate at which an employee is employed for hours worked in excess of a 40-hour work week. 29 U.S.C. § 207(a)(1). The Act exempts from the overtime provision “any employee employed in a bona fide executive, administrative, or professional capacity....” 29 U.S.C. § 213(a)(1). Exemptions to the FLSA are narrowly construed. Employers claiming an exemption have the burden of proving the allegedly exempt employees “fit plainly and unmistakably within [the exemption’s] terms.” Abshire v. County of Kern, 908 F.2d 483, 485-486 (9th Cir.1990) (alteration in original); Service Employees Int'l Union, Local 102 v. County of San Diego, 60 F.3d 1346, 1350 (9th Cir.1994). This court has held that the § 213(b) FLSA exemption claimed here is an affirmative defense that must be pleaded and proved by the defendant. Jones v. Giles, 741 F.2d" }, { "docid": "14974091", "title": "", "text": "the State has claimed that some of its Senior Investigators also fall within the executive exemption, as defined in 29 C.F.R. § 541.1. The Secretary of Labor moves for summary judgment only on the availability of the administrative exemption for the Investigators; as to the Senior Investigators and the administrative or executive exemptions, the Secretary claims that genuine issues of material fact remain. See Secretary’s Response in Opposition to Defendant's Cross-Motion for Summary Judgment at 1-2. . The State's generous compilation of information about the labor practices of various federal agencies, including the Department of Labor, serves only to confuse the issues. At most, the State shows that a variety of federal agencies fail to comply with the FLSA. This potential federal non-compliance will not excuse violations of the FLSA elsewhere. . Section 207(a) provides the general rule that, [Nb employer shall employ any of his employees who in any workweek is engaged in commerce ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. 29 U.S.C. § 207(a). . Section 213(a)(1) provides in relevant part: The provisions of [29 U.S.C. §~ 206 & 207] shall not apply with respect to- (1) any employee employed in a bona fide executive, administrative, or professional capacity ... (as such terms are defined and delimited from time to time by regulations of the Secretary, subject to the provisions of the Administrative Procedures Act . . The Senior Investigators for whom the State claims the executive exemption are those who \"manage a recognized department or unit and supervise two or more employees.\" See Defendants' Memorandum of Law at 131 n. 47. . Many governmental employers must, under local statute, deduct amounts from their employees’ pay under certain circumstances (e.g. unexcused leave). These deductions, by making it appear that the otherwise-salaried employee receives an hourly wage, might preclude the employee from passing the salary test of 29 C.F.R. § 541.118, and thereby prevent the" } ]

[ { "docid": "22922997", "title": "", "text": "the IJ, and the IJ’s denial of a continuance. We address each argument in turn. Title 18 U.S.C. § 1252(a)(1) grants judicial review of final orders of removal except as provided in subsection(b). However, Title 8 U.S.C. § 1252(a)(2)(B)(i) (1999), regardless of whether the judgment, decision, or action is made in removal proceedings, strips courts of jurisdiction to review “any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title.” Voluntary departure is addressed in 8 U.S.C. § 1229c (1999). Thus, this court lacks jurisdiction to review the IJ’s denial of voluntary departure. See 8 U.S.C. § 1229c® (1999). This court has already determined that it has jurisdiction over the BIA’s denial of a motion to remand. See Pilica v. Ashcroft, 388 F.3d 941, 945-48 (6th Cir.2004). In Pilica, this court held that a motion to reopen that does not involve the consideration of relief on the merits should not be treated as “regarding” the granting of relief under § 1255. Id. Accordingly, this court held that it had jurisdiction over the BIA’s denial of a motion to remand. Id. Similarly here, the motion for remand involves procedural issues, not the merits of Petitioner’s claims. Thus, the Government’s arguments to the contrary are unavailing. The question of whether this court has jurisdiction to review the IJ’s denial of a continuance requires a more nuanced discussion. Title 8 U.S.C. § 1252(a)(2)(B)(ii) (1999) strips courts of jurisdiction to review “any other decision or action of the Attorney General the authority for which is specified under this subehapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title.” The phrase “this subchapter” refers to subchapter II of Chapter 12 of Title 8, U.S.C. §§ 1161— 1378. Zafar v. U.S. Attorney General, 426 F.3d 1330, 1334 (11th Cir.2005); Onyinkwa v. Ashcroft, 376 F.3d 797 (8th Cir.2004). See also Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir.1999). In CDI Information Services, Inc., v. Reno, 278 F.3d 616, 619 (6th Cir.2002), this court applied 8 U.S.C." } ]

[ { "docid": "22410385", "title": "", "text": "to the contrary have ruled that discretionary authority to grant a continuance cannot be considered “specified under this subchapter” where the language that expressly provides for such authority appears only in a regulation. See Ahmed v. Gonzales, 447 F.3d 433, 436-37 (5th Cir.2006); Sanusi v. Gonzales, 445 F.3d 193, 196 (2d Cir.2006) (per curiam); Zafar v. U.S. Att’y Gen., 426 F.3d 1330, 1335 (11th Cir.2005). As the court stated in Zafar, “Because denials of motions to continue are not statutorily-proscribed discretionary acts ‘specified under this subfchapter]’ to the Attorney General, as enumerated in § 1252(a)(2)(B)(ii), we have jurisdiction to review them.” 426 F.3d at 1335; accord Ahmed, 447 F.3d at 436-37; Sanusi 445 F.3d at 196; see also Ahu-Khaliel v. Gonzales, 436 F.3d 627 (6th Cir.2006) (agreeing with the result, but not the reasoning, of Zafar). The Courts of Appeals for the Fifth and Ninth Circuits have adopted similar reasoning in concluding that the language of § 1252(a)(2)(B)(ii) does not bar review of the denial of a motion to reopen removal proceedings, a proceeding comparable to a motion to continue in its invocation of the IJ’s discretion. In Zhao v. Gonzales, 404 F.3d 295 (5th Cir.2005), the court stated, One might mistakenly read § 1252(a)(2)(B)(ii) as stripping us of the authority to review any discretionary immigration decision. That reading, however, is incorrect, because § 1252(a)(2)(B)(ii) strips us only of jurisdiction to review discretionary authority specified in the statute. The statutory language is uncharacteristically pellucid on this score; it does not allude generally to “discretionary authority” or to “discretionary authority exercised under this statute, ” but specifically to “authority for which is specified under this sub-chapter to be in the discretion of the Attorney General.” Id. at 303 (quoting § 1252(a)(2)(B)(ii)); see also Medina-Morales v. Ashcroft, 371 F.3d 520, 528 (9th Cir.2004) (“Because 8 U.S.C. § 1229a(c) neither grants nor limits the Attorney General’s discretion to deny motions to reopen, [it] can perhaps be said to have left such authority to the Attorney General by default. But default authority does not constitute the specification required by § 1252(a)(2)(B)(ii).”). In its recent" }, { "docid": "22410384", "title": "", "text": "Appeals has no jurisdiction to review the denial of a petitioner’s motion for a continuance of a removal proceeding. Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir.2004); Onyinkwa v. Ashcroft, 376 F.3d 797 (8th Cir.2004). In Yerkovich, the court felt itself bound by its earlier decision in Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir.1999), which had broadly construed the preclusive effect of § 1252(a)(2)(B)(ii). See 381 F.3d at 994. Both Yerkovich and Onyinkwa based their decisions that review of the denial of a motion for a continuance is barred on the ground that 8 C.F.R. § 1003.29, which implements an IJ’s statutory authority under § 1229a(a)(l) to “conduct proceedings,” confers discretion upon the IJ to grant a continuance. Therefore, they reasoned, “ ‘the plain meaning of § 1252(a)(2)(B)’s text’ bar[ring] courts from reviewing relief ‘specified under this subchapter’ ” encompasses orders of the IJ denying continuances. Yerkovich, 381 F.3d at 994 (quoting Samirah v. O’Connell, 335 F.3d 545, 549 (7th Cir.2003)); accord Onyinkwa, 376 F.3d at 799. Courts that have held to the contrary have ruled that discretionary authority to grant a continuance cannot be considered “specified under this subchapter” where the language that expressly provides for such authority appears only in a regulation. See Ahmed v. Gonzales, 447 F.3d 433, 436-37 (5th Cir.2006); Sanusi v. Gonzales, 445 F.3d 193, 196 (2d Cir.2006) (per curiam); Zafar v. U.S. Att’y Gen., 426 F.3d 1330, 1335 (11th Cir.2005). As the court stated in Zafar, “Because denials of motions to continue are not statutorily-proscribed discretionary acts ‘specified under this subfchapter]’ to the Attorney General, as enumerated in § 1252(a)(2)(B)(ii), we have jurisdiction to review them.” 426 F.3d at 1335; accord Ahmed, 447 F.3d at 436-37; Sanusi 445 F.3d at 196; see also Ahu-Khaliel v. Gonzales, 436 F.3d 627 (6th Cir.2006) (agreeing with the result, but not the reasoning, of Zafar). The Courts of Appeals for the Fifth and Ninth Circuits have adopted similar reasoning in concluding that the language of § 1252(a)(2)(B)(ii) does not bar review of the denial of a motion to reopen removal proceedings, a proceeding comparable" }, { "docid": "22347541", "title": "", "text": "Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1363-64 (11th Cir.2006); accord Khan v. Att’y Gen., 448 F.3d 226, 234-35 (3d Cir. 2006); Ahmed v. Gonzales, 447 F.3d 433, 438-39 (5th Cir.2006); see also Onyeme, 146 F.3d at 232-33 (holding that IJ did not abuse discretion in refusing to continue removal proceedings to await resolution of pending visa petition because petitioner had not yet applied for adjustment of status and was ineligible for status adjustment absent discretionary relief by Attorney General). But see Subhan v. Ashcroft, 383 F.3d 591, 593-95 (7th Cir.2004) (holding that IJ’s refusal to grant additional continuance to await outcome of labor certification application was an abuse of discretion). III. For the reasons discussed above, we deny Lendo’s petition for review. PETITION DENIED . The Government argued in its brief that we are barred by statute from reviewing the IJ's discretionary denial of a continuance. See 8 U.S.C.A. § 1252(a)(2)(B)(ii) (West 2005) (providing that \"[n]otwithstanding any other provision of law ... no court shall have jurisdiction to review ... any other decision or action of the Attorney General ... the authority for which is specified under this subchapter to be in the discretion of the Attorney General”). The Government, however, has since withdrawn that argument. In any event, we agree with the majority of circuits that have considered the issue that § 1252(a)(2)(B)(ii) does not bar judicial review of an IJ's denial of a motion to continue removal proceedings. See Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1360-62 (11th Cir.2006); Khan v. Att'y Gen., 448 F.3d 226, 229-33 (3d Cir.2006); Ahmed v. Gonzales, 447 F.3d 433, 436-37 (5th Cir. 2006); Sanusi v. Gonzales, 445 F.3d 193, 198-99 (2d Cir.2006) (per curiam); Abu-Khaliel v. Gonzales, 436 F.3d 627, 631-34 (6th Cir.2006). But see Yerkovich v. Ashcroft, 381 F.3d 990, 992-95 (10th Cir.2004) (holding that § 1252(a)(2)(B)(ii) deprives court of appeals of jurisdiction to review denial of continuance); Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir.2004) (same). . In Subhan, the Seventh Circuit rejected the IJ's conclusion that a continuance was unwarranted because the petitioner’s eventual eligibility" }, { "docid": "817008", "title": "", "text": "is one of several different statutory bars to judicial review of particular issues in immigration cases. See, e.g., 8 U.S.C. § 1252(a)(2)(B)(i); Onikoyi v. Gonzales, 454 F.3d 1, 3-4 (1st Cir.2006) (discussing section 1252(a)(2)(B)(i)). The government now concedes, contrary to its initial position in this case, that section 1252(a)(2)(B)(ii) poses no jurisdictional bar to judicial review of a decision by an IJ, pursuant to 8 C.F.R. § 1003.29, to grant or deny a continuance. This is the view of most courts. See Zafar v. Attorney General, 461 F.3d 1357, 1360 (11th Cir.2006); Khan v. Attorney Gener al, 448 F.3d 226, 232-33 (3d Cir.2006); Ahmed v. Gonzales, 447 F.3d 433, 437 (5th Cir.2006); Sanusi v. Gonzales, 445 F.3d 193, 198 (2d Cir.2006) (per curiam); Medina-Morales v. Ashcroft, 371 F.3d 520, 528 (9th Cir.2004) (addressing the same issue in the context of a motion to reopen). ? agree with the government’s new position that we have jurisdiction to review a denial of a continuance. We adopt the majority rule that section 1252(a)(2)(B)(ii), based on its plain language, precludes judicial review only if the “authority” for the “decision or action” at issue is “specified under this subchapter [8 U.S.C. §§ 1151-1381] to be in the discretion of the Attorney General.” 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). This provision does not limit our jurisdiction when an immigration judge exercises discretion that is not specified anywhere in the statutory subchapter, but rather derives entirely from regulations promulgated by the Attorney General under the statute. See Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.2005). An immigration judge’s authority to continue a case is not “specified under” the subchapter to be in the discretion of the Attorney General. Instead, the grant of discretion is contained in 8 C.F.R. § 1003.29 and related regulations. These regulations were promulgated by the Attorney General to implement statutory provisions that broadly authorize immigration judges to conduct removal proceedings, but do not specifically authorize them to grant or deny continuances. See, e.g., 8 U.S.C. § 1229a(a)(l) (“An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.”)." }, { "docid": "9851339", "title": "", "text": "a “judgment regarding the granting of relief under” one of the enumerated provisions when the BIA decides that it will not exercise its discretion to reopen proceedings to consider on the merits a ground for relief previously considered and denied. See id. at 597-99. Applying this interpretation of § 1252(a)(2)(B)®, we conclude that the BIA’s denial of Nath’s motion to reopen is not a “judgment regarding the granting of relief under” §§ 1182(h), 1182®, 1229b, 1229c, or 1255. First, the proceedings below did not involve any of the enumerated provisions for purposes of § 1252(a)(2)(B)®, and the motion to reopen sought to terminate removal proceedings, a form of relief not provided by any of the enumerated provisions. Second, the motion to reopen amounted to a request for new relief, “so no prior discretionary determination existed regarding the granting of the relief sought.” Fernandez, 439 F.3d at 598. Accordingly, § 1242(a)(2)(B)® does not deprive us of jurisdiction over the BIA’s denial of Nath’s motion to reopen. Nor does § 1252(a)(2)(B)(ii) deprive us of jurisdiction over the BIA’s denial of the motion to reopen. Under § 1252(a)(2)(B)(ii), we do not have jurisdiction over any “decision or action of the Attorney General ... the authority for which is specified ... to be in the discretion of the Attorney General.” However, we have held explicitly that this jurisdictional bar does not apply to denials of motions to reopen. Medina-Morales v. Ashcroft, 371 F.3d 520, 528 (9th Cir.2004). Moreover, we are not barred from hearing constitutional claims or questions of law, even those pertaining to otherwise discretionary determinations. See 8 U.S.C. § 1252(a)(2)(D); Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.2006). REASONS FOR VACATING NATH’S FIRST CONVICTION — BURDEN OF PROOF The BIA erred by placing on Nath the burden of proving that his first conviction was vacated for substantive, non-immigration related reasons. A vacated conviction can serve as the basis of removal only if the conviction was vacated for reasons “unrelated to the merits of the underlying criminal proceedings,” that is, for equitable, rehabilitation, or immigration hardship reasons. In re Pickering, 23 I." }, { "docid": "22315880", "title": "", "text": "of Medina-Morales’ motion to reopen. Because Medina-Morales abandoned his petition for adjustment of status and instead accepted voluntary departure, the IJ never ruled on Medina-Morales’ adjustment of status petition but instead granted his request for voluntary departure. Medina-Morales does not, therefore, appeal the denial of an adjustment of status application under § 1255 or a denial of voluntary departure under § 1229c. See Zazuetar-Carrillo v. Ashcroft, 322 F.3d 1166, 1169 (9th Cir.2003) (rejecting the government’s argument that the denial of an alien’s motion to reopen “involve[d] a ‘judgment regarding the granting’ of voluntary departure” within the meaning of § 1252(a)(2)(B)®, where the alien had been granted voluntary departure). Rather, Medina-Morales’ appeal “involves a decision regarding the denial of a motion to reopen,” Zazueta-Carrillo, 322 F.3d at 1169-70. The denial of Medina-Morales’ motion to reopen is a decision under 8 U.S.C. § 1182(a)(6)(A)®, the provision relied upon by the INS as the basis for his removability. See Rodriguez-Lariz, 282 F.3d at 1223. The BIA’s decision is not, therefore, a judgment “regarding the granting of relief under” 8 U.S.C. §§ 1182(h), 1182®, 1229b, 1229c or 1255, the provisions listed in § 1252(a)(2)(B)®. We hold, accordingly, that § 1252(a)(2)(B)® does not preclude our review of the discretionary aspects of the BIA’s denial of Medina-Morales’ motion to reopen. 2. Under § 1252(a)(2)(B)(ii), we do not have jurisdiction to review “any other decision or action of the Attorney General the authority for which is specified under [the INA] to be in the discretion of the Attorney General.” Interpreting this provision, we have emphasized that it “refers not to ‘discretionary decisions,’ as did the transitional rules, but to acts the authority for which is specified under the INA to be discretionary.” Spencer Enters., Inc. v. United States, 345 F.3d 683, 689 (9th Cir.2003). Thus, the jurisdictional bar in § 1252(a)(2)(B)(ii) applies only to acts over which a statute gives the Attorney General pure discretion unguided by legal standards or statutory guidelines. Spencer Enters., 345 F.3d at 689-90. Denials of motions to reopen are not acts over which a statute gives the Attorney General such pure discretion." }, { "docid": "13136342", "title": "", "text": "to the denial of the continuance is not covered by the jurisdiction-stripping rule. This is a point that deserves close attention. In Calma’s case, the government assumes without analysis that Kucana supports this court’s jurisdiction and that our review is under the deferential abuse-of-discretion standard. In Khomyshyn’s case, in contrast, the government has argued that Kucana holds only that our jurisdiction was not eliminated by 8 U.S.C. § 1252(a)(2)(B)(ii), which removes jurisdiction to review a decision of the Attorney General “the authority for which is specified under this subchapter to be in the discretion of the Attorney General.” In Juarez v. Holder, 599 F.3d 560 (7th Cir.2010), however, decided two months after Kucana, we commented that Kucana did not affect 8 U.S.C. § 1252(a)(2)(B)(i), which removes jurisdiction over “any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title.” See also Leguizamo-Medina v. Gonzales, 493 F.3d 772 (7th Cir.2007). In both of the cases before us, the ultimate decision (adjustment of status) is governed by one of the statutes listed in section 1252(a)(2)(B)(i) — specifically, section 1255, which governs adjustment of status — and so the question before us is whether we have jurisdiction to review the denial of a continuance sought for the purpose of deferring final decision in that kind of case. Although Kucana is informative, it does not definitively resolve this issue. Indeed, the Court specifically left open “the question whether review of [decisions made discretionary by regulation] would be precluded if the court would lack jurisdiction over the alien’s underlying claim for relief.” Kucana, 130 S.Ct. at 839 n. 17. The government argues that because Khomyshyn’s request for a continuance is “ancillary” to his underlying request for adjustment of status (and it might have said the same about Calma), this court lacks jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i). It finds support for this position in our pre-Kucana decisions in Leguizamo-Medina, supra; Martinez-Maldonado v. Gonzales, 437 F.3d 679, 683 (7th Cir.2006) (precluding judicial review over motions to reopen or reconsider where court lacked ability to review underlying claim); and Dave" }, { "docid": "817017", "title": "", "text": "process,” however, there can be no due process claim. Lattab v. Ashcroft, 384 F.3d 8, 20 (1st Cir.2004); see also Orekhova v. Gonzales, 417 F.3d 48, 52 (1st Cir.2005). Al-samhouri has not suggested what his new counsel could have said or done that would have countered the IJ’s reasons for denying a continuance. Thus, we are satisfied that even if the IJ had permitted the change in counsel at the outset of the hearing, the result would have been the same. The petition for review is denied and' the order of removal is upheld. The stay of removal is vacated. . An application for asylum must be “filed within 1 year after the date of the alien's arrival in the United States,” 8 U.S.C. § 1158(a)(2)(B), unless the alien can show “either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the [applicable] period,” id. § 1158(a)(2)(D). . In its initial brief to this court, the government argued that section 1252(a)(2)(B)(ii) barred judicial review of an IJ's denial of a continuance, emphasizing the discretionary nature of the decision. Alsamhouri filed no reply brief and presented no argument that we had jurisdiction despite section 1252(a)(2)(B)(ii). In an earlier opinion, now withdrawn, this panel adopted the government's position that we lacked jurisdiction over this issue. Alsamhouri v. Gonzales, 458 F.3d 15, 16 (1st Cir.2006), withdrawn, 471 F.3d 209 (1st Cir. Dec.7, 2006). That position had previously been adopted by two other courts. See Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir.2004); Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir.2004). Alsamhouri did not seek rehearing or otherwise ever suggest to this court that we had erred in finding no jurisdiction over this issue. On November 28, 2006, more than three months after the issuance of our opinion, Alsamhouri for the first time filed a pleading, a supplemental memorandum in support of a slay of removal, arguing that jurisdiction was not barred by section 1252(a)(2)(B)(ii) and noting that that was the position of the majority of" }, { "docid": "22920596", "title": "", "text": "one-paragraph opinion. He filed a timely petition for review of the BIA’s decision. DISCUSSION The main issue on appeal is whether section 1542 is a CIMT under section 1182(a)(2)(A)(i)(I). We hold that it is, and that, therefore, the IJ correctly denied Rodriguez’s application for cancellation of removal under section 1229b(b). We further hold that the IJ properly held that Rodriguez was inadmissible under section 1182(a) because he had “falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter ... or any other Federal or State law.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I). As a result, Rodriguez is statutorily ineligible for adjustment of status. See 8 U.S.C. § 1255(a) (requiring admissibility as a perquisite for adjustment of status). I. Jurisdiction Where, as here, the BIA adopts the IJ’s findings and reasoning, we review the decision of the IJ as if it were that of the BIA. Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996), provides in relevant part that “no court shall have jurisdiction to review any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b [cancellation of removal], 1229c, or 1255 [adjustment of status] of this title.” 8 U.S.C. § 1252(a)(2)(B)®. Although we have no jurisdiction to review the IJ’s discretionary determinations concerning either cancellation of removal or adjustment of status, see 8 U.S.C. § 1252(a)(2)(B)®, we retain jurisdiction to review nondiscretionary decisions regarding either form of relief, see Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir.2005). Obtaining either adjustment of status or cancellation of removal is a two-step process. First, an alien must prove eligibility by showing that he meets the statutory eligibility requirements. See Mariuta v. Gonzales, 411 F.3d 361, 365 (2d Cir.2005); Drax v. Reno, 338 F.3d 98, 113 (2d Cir.2003). Second, assuming an alien satisfies the statutory requirements, the Attorney General in his discretion decides whether to grant or deny relief. See Mariuta, 411 F.3d at 365; Drax, 338 F.3d at 113. Because these" }, { "docid": "22347542", "title": "", "text": "or action of the Attorney General ... the authority for which is specified under this subchapter to be in the discretion of the Attorney General”). The Government, however, has since withdrawn that argument. In any event, we agree with the majority of circuits that have considered the issue that § 1252(a)(2)(B)(ii) does not bar judicial review of an IJ's denial of a motion to continue removal proceedings. See Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1360-62 (11th Cir.2006); Khan v. Att'y Gen., 448 F.3d 226, 229-33 (3d Cir.2006); Ahmed v. Gonzales, 447 F.3d 433, 436-37 (5th Cir. 2006); Sanusi v. Gonzales, 445 F.3d 193, 198-99 (2d Cir.2006) (per curiam); Abu-Khaliel v. Gonzales, 436 F.3d 627, 631-34 (6th Cir.2006). But see Yerkovich v. Ashcroft, 381 F.3d 990, 992-95 (10th Cir.2004) (holding that § 1252(a)(2)(B)(ii) deprives court of appeals of jurisdiction to review denial of continuance); Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir.2004) (same). . In Subhan, the Seventh Circuit rejected the IJ's conclusion that a continuance was unwarranted because the petitioner’s eventual eligibility for adjustment of status was speculative. See id. at 593-94. Noting that the petitioner bore no fault for the delay in the labor certification process, the court apparently concluded that the IJ’s reasoning was inconsistent with Congress' intent to allow certain aliens to seek adjustment of status under § 1255(i) after receiving labor certifications. See id. at 593-95. As other courts have recognized, however, nothing in the language of § 1255(i) requires that a removable alien be allowed to remain in the United States indefinitely based on the mere filing of a labor certification application. See Zafar, 461 F.3d at 1365, 1367; Ahmed, 447 F.3d at 438. . The parties have informed us that (1) after the IJ issued her ruling, Lendo’s wife’s labor certification was approved, and (2) after the Board affirmed the IJ’s decision, Lendo’s wife was granted a visa and received an adjustment of status. In the interests of justice, we would be inclined to remand Lendo’s case for consideration of these intervening developments; but we are barred by statute from doing" }, { "docid": "817018", "title": "", "text": "section 1252(a)(2)(B)(ii) barred judicial review of an IJ's denial of a continuance, emphasizing the discretionary nature of the decision. Alsamhouri filed no reply brief and presented no argument that we had jurisdiction despite section 1252(a)(2)(B)(ii). In an earlier opinion, now withdrawn, this panel adopted the government's position that we lacked jurisdiction over this issue. Alsamhouri v. Gonzales, 458 F.3d 15, 16 (1st Cir.2006), withdrawn, 471 F.3d 209 (1st Cir. Dec.7, 2006). That position had previously been adopted by two other courts. See Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir.2004); Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir.2004). Alsamhouri did not seek rehearing or otherwise ever suggest to this court that we had erred in finding no jurisdiction over this issue. On November 28, 2006, more than three months after the issuance of our opinion, Alsamhouri for the first time filed a pleading, a supplemental memorandum in support of a slay of removal, arguing that jurisdiction was not barred by section 1252(a)(2)(B)(ii) and noting that that was the position of the majority of the circuits. This panel recalled mandate, withdrew our original opinion, granted \"rehearing on the jurisdictional issue,” and granted a stay of removal. 471 F.3d at 210. We requested that the government address the jurisdictional issue, gave Alsamhouri the opportunity to file a response, and later requested a sur-reply from the government. All such briefs have now been filed. . The immigration regulations authorize immigration judges to \"regulate the course of the hearing” in removal proceedings. 8 C.F.R. § 1240.1(c). In particular, an IJ \"may grant a motion for continuance for good cause shown.” Id. § 1003.29. . See also Abu-Khaliel v. Gonzales, 436 F.3d 627, 632-34 (6th Cir.2006) (reaching the same result, although through different reasoning); Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir.2004) (finding review permitted on the particular facts presented, because the denial of a continuance was inconsistent with the statutory scheme). . Once the continuance was denied, it was proper for the IJ to deem Alsamhouri’s application to have been abandoned. See 8 C.F.R. § 1003.31(c) (\"If an application or document" }, { "docid": "21603215", "title": "", "text": "Mukasey, 518 F.3d 511, 515 (7th Cir.2008); Cevilla, 446 F.3d at 661 (explaining that Congress intended “to distinguish between ‘statutory-construction questions’ and ‘factual questions’ and to permit judicial review only of answers to the former”). A “pure” question of law arises in “situations in which a case comes out one way if the Constitution or statute means one thing, and the other way if it means something different.” Viracacha, 518 F.3d at 515. Therefore, factual or discretionary determinations do not constitute reviewable questions of law under § 1252(a)(2)(D). See Leguizamo-Medina v. Gonzales, 493 F.3d 772, 774 (7th Cir.2007); Cevilla, 446 F.3d at 661. This court has not previously addressed our jurisdiction to review an IJ’s extreme cruelty determination for the purposes of § 1229b(b)(2). We have, however, held repeatedly that an analogous issue is not subject to judicial review: whether an alien will suffer “exceptional and extremely unusual hardship” in order to obtain cancellation of removal under § 1229b(b)(l). See Martinez-Maldonado, 437 F.3d at 682 (“Our Court and others have confirmed that the application of [§ 1252(a)(2)(B)] strips us of jurisdiction in discretionary cancellation of removal cases.”); Mireles v. Gonzales, 433 F.3d 965, 968 (7th Cir.2006) (“We lack jurisdiction to review [petitioner’s] contention that the agency should have exercised discretion in his favor [under § 1229b].... This is true whether the alien’s argument is that the agency abused its discretion or that it failed to conduct a thorough review of the record.” (citations omitted)); Leyva v. Ashcroft, 380 F.3d 303, 307 (7th Cir.2004) (“The meaning of 8 U.S.C. § 1252(a)(2)(B)® is clear: we may not review the Attorney General’s judgment regarding whether or not to grant cancellation of removal under 8 U.S.C. § 1229b(b)(l).”); Kharkhan v. Ashcroft, 336 F.3d 601, 604 (7th Cir.2003). Stepanovic has not presented a convincing reason why the extreme cruelty determination under § 1229b(b)(2) should be treated differently than “exceptional and extremely unusual” hardship under § 1229b(b)(l). Both are subject to the jurisdiction-removal provision in § 1252(a)(2)(B), and Stepanovic is challenging the BIA’s factual findings, its application of those facts to the law, and its exercise" }, { "docid": "22200978", "title": "", "text": "If so, the decision generally lies beyond judicial review, except insofar as it presents a “constitutional claim[ ] or question! ] of law” within the meaning of 8 U.S.C. § 1252(a)(2)(D). We agree with our sister Circuits that have held that the decision by an IJ or the BIA to grant or to deny a continuance in an immigration proceeding is not a decision “specified under [the relevant] subchapter to be in the discretion of the Attorney General.” See Abu-Khaliel v. Gonzales, 436 F.3d 627, 633-34 (6th Cir.2006); Zafar v. Att’y Gen., 426 F.3d 1330, 1334-35 (11th Cir.2005). We are not persuaded by the reasoning of the Circuits reaching the opposite conclusion. See, e.g., Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir.2004) (holding that “8 U.S.C. § 1252(a)(2)(B)(ii) bars review of the IJ’s discretionary decision denying petitioner’s motion for a continuance”); Onyinkwa, 376 F.3d at 799 (holding that “the power to grant continuances is within the discretion of immigration judges”). The primary argument against our exercising jurisdiction here is that pursuant to 8 U.S.C. § 1229a(a)(I), immigration judges have the authority to “conduct proceedings for deciding the inadmissibility or deportability of an alien,” and that § 1229a is within the subchapter covered by the jurisdiction-removing provision of 8 U.S.C. § 1252(a)(2)(B)(ii). Although the presiding officer at a hearing traditionally has discretion to grant or to deny continuances requested by the parties appearing before him, we cannot conclude that the decision to grant or to deny a continuance in immigration proceedings is “specified under [the relevant] subchapter to be in the discretion of the Attorney General.” Indeed, continuances are not even mentioned in the subchapter. We therefore hold that 8 U.S.C. § 1252(a)(2)(B)(ii) does not deprive us of jurisdiction to review decisions by IJs to grant or to deny continuances, which accords with our general presumption in favor of judicial review. See INS v. St. Cyr, 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (stating that despite specific jurisdiction-denying provisions, in immigration cases there still exists a “strong presumption in favor of judicial review of administrative action”)." }, { "docid": "21603214", "title": "", "text": "the phrase “any judgment regarding the granting of relief’ for the purposes of § 1252(a)(2)(B)®. The statute is clear that, at a minimum, we may not review any discretionary determination regarding relief under § 1229b. See, e.g., Martinez-Maldonado v. Gonzales, 437 F.3d 679, 682 (7th Cir.2006) (“[Section 1252(a)(2)(B)] bars judicial review of all discretionary decisions of the Attorney General made in immigration cases, with a few exceptions....”); Cevilla v. Gonzales, 446 F.3d 658, 661 (7th Cir.2006) (“[Wjhile the purpose of the door-closing statute appears to be to place discretionary rulings beyond the power of judicial review (hence the caption of subsection (B)), the statute itself, read literally, goes further and places all rulings other than those resolving questions of law or constitutional issues beyond the power of judicial review.” (emphasis added)). Subsection (D) of the jurisdictional statute restores our jurisdiction to review only constitutional claims or questions of law. See 8 U.S.C. § 1252(a)(2)(D). We have interpreted the phrase “questions of law” to permit judicial review of only “pure” questions of law. See Viracocha v. Mukasey, 518 F.3d 511, 515 (7th Cir.2008); Cevilla, 446 F.3d at 661 (explaining that Congress intended “to distinguish between ‘statutory-construction questions’ and ‘factual questions’ and to permit judicial review only of answers to the former”). A “pure” question of law arises in “situations in which a case comes out one way if the Constitution or statute means one thing, and the other way if it means something different.” Viracacha, 518 F.3d at 515. Therefore, factual or discretionary determinations do not constitute reviewable questions of law under § 1252(a)(2)(D). See Leguizamo-Medina v. Gonzales, 493 F.3d 772, 774 (7th Cir.2007); Cevilla, 446 F.3d at 661. This court has not previously addressed our jurisdiction to review an IJ’s extreme cruelty determination for the purposes of § 1229b(b)(2). We have, however, held repeatedly that an analogous issue is not subject to judicial review: whether an alien will suffer “exceptional and extremely unusual hardship” in order to obtain cancellation of removal under § 1229b(b)(l). See Martinez-Maldonado, 437 F.3d at 682 (“Our Court and others have confirmed that the application of" }, { "docid": "22200977", "title": "", "text": "“this sub-chapter” refers to subchapter II of Chapter 12 of Title 8 of the United States Code, which includes §§ 1151-1381. See, e.g., Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir.2004). The scope of this jurisdiction-removing provision of the IIRIRA was itself limited by section 106(a)(1)(A)(iii) of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, which provides that nothing in any provision of the INA “which limits or eliminates judicial review ... shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals .... ” 8 U.S.C. § 1252(a)(2)(D). In light of that statutory landscape, we consider whether we may exercise jurisdiction to review the instant petition to the extent Sanusi challenges the IJ’s denial of a continuance. First, we must assess whether the decision to grant or to deny a continuance in an immigration proceeding is “specified under [the relevant] subchapter to be in the discretion of the Attorney General.” 8 U.S.C. § 1252(a)(2)(B)(ii). If so, the decision generally lies beyond judicial review, except insofar as it presents a “constitutional claim[ ] or question! ] of law” within the meaning of 8 U.S.C. § 1252(a)(2)(D). We agree with our sister Circuits that have held that the decision by an IJ or the BIA to grant or to deny a continuance in an immigration proceeding is not a decision “specified under [the relevant] subchapter to be in the discretion of the Attorney General.” See Abu-Khaliel v. Gonzales, 436 F.3d 627, 633-34 (6th Cir.2006); Zafar v. Att’y Gen., 426 F.3d 1330, 1334-35 (11th Cir.2005). We are not persuaded by the reasoning of the Circuits reaching the opposite conclusion. See, e.g., Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir.2004) (holding that “8 U.S.C. § 1252(a)(2)(B)(ii) bars review of the IJ’s discretionary decision denying petitioner’s motion for a continuance”); Onyinkwa, 376 F.3d at 799 (holding that “the power to grant continuances is within the discretion of immigration judges”). The primary argument against our exercising jurisdiction here is that pursuant to 8 U.S.C." }, { "docid": "817007", "title": "", "text": "voluntary departure. After consultation with counsel, Alsamhouri and his wife declined to request voluntary departure; the IJ ordered removal to Jordan. Alsamhouri timely appealed to the BIA. On November 3, 2005, the BIA affirmed the order of removal, without opinion. See 8 C.F.R. § 1003.1(e)(4). Alsamhouri then brought this petition for review, claiming that the IJ had abused his discretion and violated Alsamhouri’s constitutional due process rights in denying a further continuance and deeming Alsamhouri’s applications to have been abandoned. II. The question arises of whether we have jurisdiction over the non-constitutional claim of abuse of discretion, in light of 8 U.S.C. § 1252(a)(2)(B)(ii). That section provides: [N]o court shall have jurisdiction to review ... any ... decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter [8 U.S.C. §§ 1151-1381] to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title [relating to asylum]. This provision is one of several different statutory bars to judicial review of particular issues in immigration cases. See, e.g., 8 U.S.C. § 1252(a)(2)(B)(i); Onikoyi v. Gonzales, 454 F.3d 1, 3-4 (1st Cir.2006) (discussing section 1252(a)(2)(B)(i)). The government now concedes, contrary to its initial position in this case, that section 1252(a)(2)(B)(ii) poses no jurisdictional bar to judicial review of a decision by an IJ, pursuant to 8 C.F.R. § 1003.29, to grant or deny a continuance. This is the view of most courts. See Zafar v. Attorney General, 461 F.3d 1357, 1360 (11th Cir.2006); Khan v. Attorney Gener al, 448 F.3d 226, 232-33 (3d Cir.2006); Ahmed v. Gonzales, 447 F.3d 433, 437 (5th Cir.2006); Sanusi v. Gonzales, 445 F.3d 193, 198 (2d Cir.2006) (per curiam); Medina-Morales v. Ashcroft, 371 F.3d 520, 528 (9th Cir.2004) (addressing the same issue in the context of a motion to reopen). ? agree with the government’s new position that we have jurisdiction to review a denial of a continuance. We adopt the majority rule that section 1252(a)(2)(B)(ii), based on its plain language," }, { "docid": "15688739", "title": "", "text": "of status is committed to the discretion of the Secretary of Homeland Security. 8 U.S.C. § 1255(a). The INA divests the courts of the authority to review two categories of cases: (1) “any judgment regarding the granting of relief,” and (2) “any other decision or action ... specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” See 8 U.S.C. § 1252(a)(2)(B)®, (ii). Since the Secretary has not yet issued a “judgment” on the merits of Aslam’s application, only the second category is at issue. Recognizing the “well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action,” McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), a plain reading of Section 1252(a)(2)(B)(ii) confirms that the INA only strips the judiciary of jurisdiction to review those discretionary decisions and actions that are “specified under this subchapter.” See Khan v. Att’y Gen., 448 F.3d 226, 232 (3d Cir.2006) (“The key to § 1252(a)(2)(B)(ii) lies in its requirement that the discretion giving rise to the jurisdictional bar must be ‘specified’ by statute.”) (citation and alterations omitted); Ahmed v. Gonzales, 447 F.3d 433, 436 (5th Cir.2006) (same); Spencer Enter., Inc. v. United States, 345 F.3d 683, 689 (9th Cir.2003) (same). Although the INA places the decision of whether to adjust status in the sound discretion of the Secretary, it says nothing about the Secretary’s discretion to set the pace of that decision. Accordingly, the Court retains jurisdiction under the APA to determine whether the Secretary has unlawfully delayed or withheld final adjudication of a status adjustment application. This conclusion is supported by the way in which Congress titled this statutory subparagraph, as “Denials of discretionary relief,” and by the concern to which this subparagraph was directed. As the legislative history reveals, Congress was concerned that judicial review was unduly interfering with decisions to remove problematic aliens. See Tang v. Chertoff, 493 F.Supp.2d 148, 152 (D.Mass.2007) (“[T] he original purpose of this subparagraph was to ensure removal of those individuals adjudicated removable by making the" }, { "docid": "13136355", "title": "", "text": "the challenged action from the determination on the merits, then jurisdiction is lacking and the petition must be dismissed. It is worth recalling that a central theme in Kucana was the importance of judicial review to protect the procedural fairness of the agency process. As the Supreme Court put it, motions to reopen are a “procedural device serving to ensure that aliens are getting a fair chance to have their claims heard.” 130 S.Ct. at 837. This purpose is, if anything, even more important for aliens like Calma and Khomyshyn who will be strictly barred from seeking review of the denial of their claims for adjustment of status. Kucana emphasized “the presumption favoring judicial review of administrative action.” Id. at 839. It noted that “[w]hen a statute is reasonably susceptible to divergent interpretation,” it should be construed in a way that permits review. Id. The provision here, § 1252(a)(2)(B)®, prohibits judicial review of decisions on adjustment of status, but it says nothing about review of antecedent procedural decisions such as continuances that shape the final outcome. We note that our sister circuits have come to conflicting results on the question whether judicial review is ever available in cases where review of the underlying claim for relief is foreclosed. Compare Thimran v. Holder, 599 F.3d 841, 845 (8th Cir.2010) (yes), with Freeman v. Holder, 596 F.3d 952, 956 n. 2 (8th Cir.2010) (no); and compare Assaad v. Ashcroft, 378 F.3d 471, 474 (5th Cir.2004) (per curiam) (no), with Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th Cir.2001) (yes, unless the Board addressed the merits of the request for relief). We should not confuse the unavailability of judicial review with the unimportance of the kinds of relief that are covered by § 1252(a)(2)(B)®: waivers of inadmissibility (§§ 1182(h) and 1182®); cancellation of removal (§ 1229b); voluntary departure (§ 1229c); and adjustment of status (§ 1255). These are all measures that Congress has chosen to make available to deserving aliens; it has simply chosen at the same time to make the competent agency’s decision on the merits of those types of relief final." }, { "docid": "6394941", "title": "", "text": "the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review— (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title [asylum]. Before the Supreme Court’s decision in Kucana, most circuits had found the language granting discretion to the Attorney General must appear in the statute itself for the jurisdictional bar to apply. See Khan v. Att’y Gen., 448 F.3d 226, 231-33 (3d Cir.2006) (“In our view, the Second, Fifth, Ninth and Eleventh Circuit Courts of Appeals have adopted the correct reading of § 1252(a)(2)(B)(ii).”). However, the Eighth Circuit had concluded that “whenever a regulation implementing a subchapter II statute confers discretion upon an IJ, IIRIRA generally divests courts of jurisdiction to review the exercise of that discretion.” Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir.2004). The Supreme Court in Kucana required that the discretionary nature of the decision be found in the statute itself in order for the jurisdictional bar to apply. See Hernandez v. Holder, 606 F.3d 900, 903 (8th Cir. 2010) (“the Supreme Court held in Kucana that section 1252(a)(2)(B)’s ‘proscription of judicial review’ only ‘applies ... to Attorney General determinations made discretionary by statute’ and not those ‘determinations declared discretionary by the Attorney General himself through regulation.’ 130 S.Ct. at 831. This court has already recognized the impact of Kucana on our precedent, stating that it ‘effectively overruled our decision in Onyinkwa.’ ”). The statutory provision creating the I-130 process directs that the Attorney General, “[a]fter an investigation of the facts in each ease[,]” shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative specified in section 1151(b) of this title or is eligible for preference under subsection (a) or (b) of section 1153 of this title, approve" }, { "docid": "22347540", "title": "", "text": "pending for nearly three years. It was not an abuse of discretion for the IJ to refuse to grant an open-ended continuance based on the mere possibility that this application would eventually be approved and that Lendo would someday be eligible for adjustment of status. As the Eleventh Circuit held in a similar case, All petitioners offered the IJs was the speculative possibility that at some point in the future they might have received ... approved labor certifications from the DOL, and only then could the required 1-140 visa petitions be filed, and only then would petitioners be able to file the 1485 applications for adjustment of status with the DHS and ask for adjustment-of-status relief. Given that petitioners had filed only labor certificate applications with the DOL, were not yet statutorily eligible for adjustment of status under § 1255®, and had not filed 1 — 485 applications for adjustment-of-status relief under § 1255®, it clearly was not an abuse of discretion for the IJs to deny the motions for continuances of the removal proceedings. Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1363-64 (11th Cir.2006); accord Khan v. Att’y Gen., 448 F.3d 226, 234-35 (3d Cir. 2006); Ahmed v. Gonzales, 447 F.3d 433, 438-39 (5th Cir.2006); see also Onyeme, 146 F.3d at 232-33 (holding that IJ did not abuse discretion in refusing to continue removal proceedings to await resolution of pending visa petition because petitioner had not yet applied for adjustment of status and was ineligible for status adjustment absent discretionary relief by Attorney General). But see Subhan v. Ashcroft, 383 F.3d 591, 593-95 (7th Cir.2004) (holding that IJ’s refusal to grant additional continuance to await outcome of labor certification application was an abuse of discretion). III. For the reasons discussed above, we deny Lendo’s petition for review. PETITION DENIED . The Government argued in its brief that we are barred by statute from reviewing the IJ's discretionary denial of a continuance. See 8 U.S.C.A. § 1252(a)(2)(B)(ii) (West 2005) (providing that \"[n]otwithstanding any other provision of law ... no court shall have jurisdiction to review ... any other decision" } ]

[ { "docid": "22659483", "title": "", "text": "stressed. See Far East Conference v. United States, 342 U. S. 570. The two factors are part of the same principle, “now firmly established, that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by prelimi nary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.” Id., at 574-575. The doctrine of primary jurisdiction thus does “more than prescribe the mere procedural time table of the lawsuit. It is a doctrine allocating the law-making power over certain aspects” of commercial relations. “It transfers from court to agency the power to determine” some of the incidents of such relations. Thus the first question presented is whether effectuation of the statutory purposes of the Interstate Commerce Act requires that the Interstate Commerce Commission should first pass on the construction of the tariff in dispute here; this, in turn, depends on whether the question raises issues of transportation policy which ought to be considered by the Commission in the interests of a uniform and expert administration of the regulatory scheme laid down by that Act. Decision is governed by two earlier cases in this Court. In Texas & Pacific R. Co. v. American Tie & Timber Co., 234 U. S. 138, a shipper attempted to ship oak railroad ties under a tariff for “lumber.” . The carrier rejected them, urging that such ties were not lumber. In a damage action expert testimony was received on the question. This Court, however, held that the Interstate Commerce Commission alone could resolve the question. The" } ]

[ { "docid": "22229022", "title": "", "text": "a holding that a state legislature or court, by virtue of conferring “exclusive” primary jurisdiction on a state administrative agency, divests an Article III federal court of its subject matter jurisdiction. That treatment cannot withstand rigorous analysis, and, to the extent the majority adopts it, I believe it errs. A. The majority recognizes that “language in some decisions ... seems to suggest a contrary result here.” Majority at 1106. Indeed, a whole host of cases stand for the proposition that primary jurisdiction (exclusive or otherwise) has nothing to do with subject matter jurisdiction. See Reiter v. Cooper, 507 U.S. 258, -, 113 S.Ct. 1213, 1220, 122 L.Ed.2d 604 (1993) (“Referral of the issue to the administrative agency does not deprive the court of jurisdiction; it has discretion to either retain jurisdiction or, if the parties would not be unfairly disadvantaged, to dismiss the case without prejudice.”); General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 432-33, 60 S.Ct. 325, 331, 84 L.Ed. 361 (1940) (district court had personal and subject matter jurisdiction, but should have stayed its hand pending determination of certain issues by the Interstate Commerce Commission); accord Northwest Airlines, Inc. v. County of Kent, Mich., — U.S. -, -n. 10, 114 S.Ct. 855, 863 n. 10, 127 L.Ed.2d 183 (1994) (primary jurisdiction, unlike subject matter jurisdiction, is waivable); Gross Common Carrier, Inc. v. Booster Healthcare Corp., 51 F.3d 703, 706 (7th Cir.1995) (same); United States v. Henri, 828 F.2d 526, 528 (9th Cir.1987) (per curiam) (primary jurisdiction, despite the name, does not go to the jurisdictional power of the federal courts) (citing United States v. Bessemer & L.E. R.R. Co., 717 F.2d 593, 599 (D.C.Cir.1983)); Oasis Pet. Corp. v. United States Dep’t of Energy, 718 F.2d 1558, 1563 (Temp.Emer.Ct.App.1983) (citing United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963)). The majority acknowledges most of the above cases, but attempts to distinguish them on the basis that none of those eases “addressed the issue of the authority of a federal court to adjudicate a matter that a state" }, { "docid": "22229013", "title": "", "text": "PUC and otherwise furnished and maintained adequate, efficient, safe and reasonable services and facilities to [plaintiff]. Id. 600 A.2d at 556-57. The controversy between Teleeoneepts and Bell is analogous. We believe that the doctrine of primary jurisdiction required the district court to utilize the bifurcated procedure established for resolving questions of liability where damages are sought in a matter involving the special expertise of the PUC. Thus, although the district court had jurisdiction over the third-party claim, the court erred in deciding the question of liability. That claim must be transferred to the PUC for such a determination. If the PUC concludes that Telecon-cepts is entitled to indemnification from Bell, the district court may then make an appropriate award to Teleconcepts. See Optimum Image, 600 A.2d at 557. We are aware that language in some decisions of the United States Supreme Court and our sister Courts of Appeals seems to suggest a contrary result here. For example, in Reiter v. Cooper, 507 U.S. 258, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993) the Court stated: Referral of the issue to the administrative agency does not deprive the court of jurisdiction; it has discretion to either retain jurisdiction or, if the parties would not be unfairly disadvantaged, to dismiss the case without prejudice. 507 U.S. at -, 113 S.Ct. at 1219. See also, U.S. v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963) (comparing primary jurisdiction to a prudential doctrine of abstention and noting that primary jurisdiction merely postpones and does not preclude the exercise of jurisdiction by a federal court), Northwest Airlines, Inc. v. County of Kent, Mich., — U.S. -, 114 S.Ct. 855, 127 L.Ed.2d 183 (1994) (failure to brief primary jurisdiction resulted in waiving consideration of the doctrine), Gross v. Baxter Healthcare Corp., 51 F.3d 703, 706 (7th Cir.1995) (the court found the parties had waived any consideration of primary jurisdiction and noted, “[i]n this respect, primary jurisdiction is quite different from subject matter jurisdiction[ ]”), and U.S. v. Henri, 828 F.2d 526, 527 (9th Cir.1987) (“the doctrine of primary jurisdiction, despite what the" }, { "docid": "22229014", "title": "", "text": "of the issue to the administrative agency does not deprive the court of jurisdiction; it has discretion to either retain jurisdiction or, if the parties would not be unfairly disadvantaged, to dismiss the case without prejudice. 507 U.S. at -, 113 S.Ct. at 1219. See also, U.S. v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963) (comparing primary jurisdiction to a prudential doctrine of abstention and noting that primary jurisdiction merely postpones and does not preclude the exercise of jurisdiction by a federal court), Northwest Airlines, Inc. v. County of Kent, Mich., — U.S. -, 114 S.Ct. 855, 127 L.Ed.2d 183 (1994) (failure to brief primary jurisdiction resulted in waiving consideration of the doctrine), Gross v. Baxter Healthcare Corp., 51 F.3d 703, 706 (7th Cir.1995) (the court found the parties had waived any consideration of primary jurisdiction and noted, “[i]n this respect, primary jurisdiction is quite different from subject matter jurisdiction[ ]”), and U.S. v. Henri, 828 F.2d 526, 527 (9th Cir.1987) (“the doctrine of primary jurisdiction, despite what the term may imply, does not speak of the jurisdictional power of the federal courts[]”). However, none of these eases addressed the issue of the authority of a federal court to adjudicate a matter that a state legislature had placed within the exclusive domain of a state administrative agency. Accordingly, our analysis here is consistent with the results reached in such cases. See U.S. v. Western Pacific Railroad, 352 U.S. 59, 63, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). There, the court stated: [t]he doctrine of primary jurisdiction thus does ‘more than prescribe the mere procedural timetable of the law suit. It is a doctrine allocating the law making power over certain aspects’ of commercial relations. ‘It transfers from court to agency the power to determine’ some of the incidents of such relations. 352 U.S. at 65, 77 S.Ct. at 166 (emphasis added). See also, Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795 (1950), and Pennsylvania Railroad Co. v. Day, 360 U.S. 548, 79 S.Ct. 1322, 3" }, { "docid": "22229021", "title": "", "text": "the majority’s holding with respect to primary jurisdiction is incorrect and will unnecessarily limit the jurisdiction of the federal courts. Although I agree with the majority’s decision to apply primary jurisdiction analysis, I do not agree with the manner in which it conflates that doctrine with the district court’s constitutional and statutory subject matter jurisdiction to hear Teleconcepts’ third-party claim. I. The majority, recognizing that neither party below raised the issue, nevertheless concludes that “we must ... determine if the doctrine of primary jurisdiction applies.” Majority at 1103 (emphasis added). It relies for this proposition on Greate Bay Hotel & Casino v. Tose, 34 F.3d 1227 (3d Cir.1994), in which we remarked that “when the legislature provides an agency with ‘exclusive primary jurisdiction,’ it preempts the courts’ original jurisdiction over the subject matter.” Id, at 1230 n. 5. That opinion also stated that we heard the appeal because “we are obliged to examine the subject matter jurisdiction of the district court.” Id. at 1230 n. 4. Essentially, the majority treats dicta from Greate Bay as a holding that a state legislature or court, by virtue of conferring “exclusive” primary jurisdiction on a state administrative agency, divests an Article III federal court of its subject matter jurisdiction. That treatment cannot withstand rigorous analysis, and, to the extent the majority adopts it, I believe it errs. A. The majority recognizes that “language in some decisions ... seems to suggest a contrary result here.” Majority at 1106. Indeed, a whole host of cases stand for the proposition that primary jurisdiction (exclusive or otherwise) has nothing to do with subject matter jurisdiction. See Reiter v. Cooper, 507 U.S. 258, -, 113 S.Ct. 1213, 1220, 122 L.Ed.2d 604 (1993) (“Referral of the issue to the administrative agency does not deprive the court of jurisdiction; it has discretion to either retain jurisdiction or, if the parties would not be unfairly disadvantaged, to dismiss the case without prejudice.”); General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 432-33, 60 S.Ct. 325, 331, 84 L.Ed. 361 (1940) (district court had personal and subject matter" }, { "docid": "23507023", "title": "", "text": "hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433 [60 S.Ct. 325, 331, 84 L.Ed. 361 (1940)]. The doctrine of primary jurisdiction thus does “more than prescribe the mere procedural time table of the lawsuit. It is a doctrine allocating the lawmaking power over certain aspects” of commercial relations. “It transfers from court to agency the power to determine” some of the incidents of such relations. (Footnote omitted). Justice Harlan, writing for the Court in Western Pacific, emphasized the necessity for applying the doctrine of primary jurisdiction on a case-by-case basis, and identified the two principal considerations to be taken into account: No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation. These reasons and purposes have often been given expression by this Court. In the earlier cases emphasis was laid on the desirable uniformity which would obtain if initially a specialized agency passed on certain types of administrative questions. See Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 [27 S.Ct. 350, 51 L.Ed. 553 (1907) ]. More recently the expert and specialized knowledge of the agencies involved has been particularly stressed. See Far East Conference v. United States, 342 U.S. 570 [72 S.Ct. 492, 96 L.Ed. 576 (1952) ]. Id. at 64, 77 S.Ct. at 165. The district court concluded that the claims of Count I, alleging that the defendants’ charges and practices are unjust and unreasonable within the meaning of section 201(b) of the Communications Act, are within the primary jurisdiction of" }, { "docid": "13555588", "title": "", "text": "an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions,” to the appropriate division of the National Railroad Adjustment Board. Beginning with Slocum v. Delaware, L. & W. R. R., 1950, 339 U.S. 239, 244, 70 S.Ct. 577, 94 L.Ed. 795 and Order of Ry. Conductors v. Southern Ry., 1950, 339 U.S. 255, 70 S.Ct. 585, 94 L.Ed. 811, the Supreme Court has held that primary jurisdiction in such cases as these lies in the Board and not in the courts, state or federal. See Pennsylvania R. R. Co. v. Day, 1959, 360 U.S. 548, 79 S.Ct. 1322, 3 L.Ed.2d 1422 and Union Pac. R. R. Co. v. Price, 1959, 360 U.S. 601, 79 S.Ct. 1351, 3 L. Ed.2d 1460, for the most recent reiterations and applications of this rule. The plaintiffs, themselves, acknowledge that “disputes between carriers and their employees as to interpretation of existing agreements must be referred to the National Railroad Adjustment Board.” Plaintiffs argue that this litigation does not involve an interpretation of an existing agreement. In spite of the many words used in arguing this point, we think it has no merit. If plaintiffs have any claim at all against the Railroad it must be because of existing “agreements” between the Brotherhood and the Railroad; the allegation that the Brotherhood has permitted the Railroad to ignore the “agreements” does not remove this case from the Board’s jurisdiction. This point alone would be sufficient to require dismissal of the complaint against the Railroad. There is an additional reason why plaintiffs’ basic claim against the Railroad must fall. That cause of action is based solely on a contract. According to the complaint, that contract is embodied in a letter written by the General Chairman of the Brotherhood’s Pennsylvania Railroad System Board of Adjustments to W. L. Nancarrow, General Manager of the Railroad’s eastern region, under date of April 21, 1950. This letter is attached to the complaint and its authenticity is not denied by the" }, { "docid": "22229023", "title": "", "text": "jurisdiction, but should have stayed its hand pending determination of certain issues by the Interstate Commerce Commission); accord Northwest Airlines, Inc. v. County of Kent, Mich., — U.S. -, -n. 10, 114 S.Ct. 855, 863 n. 10, 127 L.Ed.2d 183 (1994) (primary jurisdiction, unlike subject matter jurisdiction, is waivable); Gross Common Carrier, Inc. v. Booster Healthcare Corp., 51 F.3d 703, 706 (7th Cir.1995) (same); United States v. Henri, 828 F.2d 526, 528 (9th Cir.1987) (per curiam) (primary jurisdiction, despite the name, does not go to the jurisdictional power of the federal courts) (citing United States v. Bessemer & L.E. R.R. Co., 717 F.2d 593, 599 (D.C.Cir.1983)); Oasis Pet. Corp. v. United States Dep’t of Energy, 718 F.2d 1558, 1563 (Temp.Emer.Ct.App.1983) (citing United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963)). The majority acknowledges most of the above cases, but attempts to distinguish them on the basis that none of those eases “addressed the issue of the authority of a federal court to adjudicate a matter that a state legislature had placed within the exclusive domain of a state administrative agency.” Majority at 1106. This distinction, that a state legislature’s or court’s actions may divest the federal courts of subject matter jurisdiction where the same action by Congress would not, is unsupported by the cases the majority cites. In the first ease relied on by the majority, United States v. Western Pac. R.R. Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956), railroads sued the government in the Court of Claims to recover differences between the tariff rates they had been paid and the rates they believed were required on shipments of napalm bombs. The issue was whether the tariff for gasoline in drums or the higher tariff for incendiary bombs applied to the shipments. Neither party raised the issue of primary jurisdiction in the lower court, but the Supreme Court, on its own motion, considered the question of whether exclusive primary jurisdiction was vested in the Interstate Commerce Commission. Notably, the reason the Court gave for considering the issue sua sponte" }, { "docid": "18717461", "title": "", "text": "in the courts. . We use the term \"primary jurisdiction” in the sense in which the United States Supreme Court used it in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 780, 3 L.Ed.2d 775 (1959). \"When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board....” 359 U.S. at 245, 79 S.Ct. at 780. In this opinion, the term ‘primary jurisdiction' is used to refer to the various considerations articulated in Garmon and its progeny that militate in favor of pre-empting state-court jurisdiction over activity which is subject to the unfair labor practice jurisdiction of the federal Board. This use of the term should not be confused with the doctrine of primary jurisdiction, which has been described by Professor Davis as follows: \"The precise function of the doctrine of primary jurisdiction is to guide a court in determining whether the court should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court. \"The doctrine of primary jurisdiction does not necessarily allocate power between courts and agencies, for it governs only the question whether court or agency will initially decide a particular issue, not the question whether court or agency will finally decide the issue.” 3 K. Davis, Administrative Law Treatise § 19.01, p 3 (1958) (emphasis in original). While the considerations underlying Garmon are similar to those underlying the primary-jurisdiction doctrine, the consequences of the two doctrines are therefore different. Where applicable, the Garmon doctrine completely pre-empts state-court jurisdiction unless the Board determines that the disputed conduct is neither protected nor prohibited by the federal Act. Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 199, n. 29, 98 S.Ct. 1745, 1758, n. 29, 56 L.Ed.2d 209 (1978). . Laborers Health & Welfare Trust Fund v. Advanced Lightweight Concrete Co., Inc., 779 F.2d 497 (9th Cir.1985); see also Office and Professional Employees" }, { "docid": "2485974", "title": "", "text": "Johnson Act are satisfied concerning claims 2 and 3, those claims must be dismissed. ABSTENTION After the briefs were filed in this matter, the United States Supreme Court rendered its decision in the case of New Orleans Public Service, Inc. v. Council of New Orleans, — U.S.-, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). Defendants now concede that New Orleans Public Service controls the issues of Younger and Burford abstention in this case and precludes abstention from plaintiff’s 401(b) claim. Since this Court has previously dismissed claims 2 and 3 based upon the Johnson Act, it need not consider the issue of abstention as to those claims. PRIMARY JURISDICTION The doctrine of primary jurisdiction is concerned with promoting proper relationships between the courts and the administrative agencies charged with particular regulatory duties. The application of the doctrine to the interpretation of agency-made regulation was discussed by the United States Supreme Court in United States v. Western P.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956): No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purpose it serves will be aided by its application in the particular litigation. These reasons and purposes have often been given expression by this court. In the earlier cases emphasis was laid on the desirable uniformity which would obtain if initially a specialized agency passed on certain types of administrative questions. More recently the expert and specialized knowledge of the agencies involved has been particularly stressed ... The doctrine of primary jurisdiction thus does “more than prescribe the procedural timetable of the lawsuit.” It is a doctrine allocating the law-making power over certain aspects of commercial relations. It transfers from court to agency the power which determines some of the incidents of such relations, (citations omitted) In order to determine whether the doctrine of primary jurisdiction is applicable it is necessary for the Court to analyze the issues in dispute in this matter. Plaintiffs position in its 401(b) claim" }, { "docid": "2359315", "title": "", "text": "to the loss of the desired forum. See National R.R. Passenger Corp. v. Providence & W.R.R. Co., 798 F.2d 8, 12 (1st Cir.1986) (stating, in case where stay was found to be an appeal-able final order, \"[i]f after the state condemnation proceeding is completed, there are any issues in [plaintiff's] complaint remaining to be resolved ..., [the district court] may take them up at that time); Silberkleit v. Kantrowitz, 713 F.2d 433, 434 (9th Cir.1983) (finding stay appealable where state court action involved \"similar issues” and collateral estoppel would \"resolve or limit the issues to be decided in federal court”) (emphasis added). . Because this court has appellate jurisdiction, we need not pass on the Government's alternate request for a writ of mandamus. See Silberkleit v. Kantrowitz, 713 F.2d 433, 434 n. 1 (9th Cir. 1983). . See, e.g., Ricci v. Chicago Mercantile Exch., 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973); United States v. Western Pac. R.R., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); United States v. Pacific & A. Ry. & Navigation Co., 228 U.S. 87, 33 S.Ct. 443, 57 L.Ed. 742 (1913); United States v. Yellow Freight Sys., 762 F.2d 737 (9th Cir. 1985). . The importance of ensuring Congressional intent to place the initial consideration of an issue with an agency before finding that judicial deferral is warranted is made clear by the fact that [t]he doctrine of primary jurisdiction ... does \"more than prescribe the mere procedural time table of the lawsuit. It is a doctrine allocating the lawmaking power over certain aspects” of commercial relations. \"It transfers from court to agency the power to determine” some of the incidents of such relationships. Western Pac. R.R., 352 U.S. at 65, 77 S.Ct. at 166 (quoting Jaffe, Primary Jurisdiction Doctrine Reconsidered, 102 U.Pa.L.Rev. 577, 583-84 (1954)). In some cases, as here, see supra at 1360, the referring court has no authority to review the agency’s determination. See Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 69-71, 91 S.Ct. 203, 208-09, 27 L.Ed.2d 203 (1970). Thus, given that" }, { "docid": "22229027", "title": "", "text": "act of Congress must have supplied it....” Finley v. United States, 490 U.S. 545, 548, 109 S.Ct. 2003, 2006, 104 L.Ed.2d 593 (1989) (quoting The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 252, 18 L.Ed. 851 (1868)). Thus, if Congress wishes to confer exclusive jurisdiction on a federal administrative agency and divest the district courts of that jurisdiction, it would be within its constitutional power to do so, although it did not do so in the cases discussed above. Under the Supremacy Clause, Congress may likewise confer exclusive primary jurisdiction on a federal court or administrative agency and divest the state courts of what would otherwise be within their subject matter jurisdiction. This unremarkable principle explains the “exclusive” primary jurisdiction of the National Railway Adjustment Board found by the Supreme Court in two of the cases the majority relies upon. See Pennsylvania R.R. Co. v. Day, 360 U.S. 548, 552, 79 S.Ct. 1322, 1325, 3 L.Ed.2d 1422 (1959); Slocum v. Delaware, L. & W. R.R. Co., 339 U.S. 239, 244, 70 S.Ct. 577, 580, 94 L.Ed. 795 (1950). A state legislature may also limit the jurisdiction of its own state’s courts by enacting a statute vesting exclusive primary jurisdiction in a state board or agency, subject of course to the strictures of state law and the due process requirements of the Fourteenth Amendment. See Create Bay, 34 F.3d at 1230 & n. 5 (dictum); Behrend v. Bell Tel. Co., 431 Pa. 63, 243 A2d 346, 347-48 (1968). Thus, I have no quarrel with the majority’s conclusion that a Pennsylvania state court would have no power to hear this claim. C. It does not follow, however, that a state may by statutory or decisional law restrict the subject matter jurisdiction of the federal courts. It is axiomatic that, because federal subject matter jurisdiction can be conferred or withdrawn only by Congress, a federal court must look only to federal, not state, law to determine whether that jurisdiction exists, even when the substantive right at issue is a creature of state law. Duchek v. Jacobi, 646 F.2d 415, 419 (9th Cir.1981);" }, { "docid": "13555587", "title": "", "text": "relevant times, they say, eastern region “tallymen” were paid approximately $25 per month less than their central region counterparts. This geographic differential in pay was the subject of a dispute. It is claimed that an “agreement” (reduced to writing in a letter attached to the complaint) was entered into in 1950 removing the differential. The letter also provided for the elimination of certain tonnage rates (the exact nature of which is not made clear by the complaint) in the eastern region. Despite this “agreement,” it is alleged, the pay rates were never equalized, although tonnage payments to the eastern region “tallymen” were eliminated. The Brotherhood, it is charged, has never taken any steps to compel the Railroad to abide by its new “agreement” because “the Pennsylvania Railroad Company could control union officers at will.” Accordingly, plaintiffs bring this action. A seemingly insurmountable defense of the Railroad to this suit is Section 3, First (i) of the Railway Labor Act, 45 U.S.C.A. § 153, First (i). This section provides for the referring of unresolved disputes “between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions,” to the appropriate division of the National Railroad Adjustment Board. Beginning with Slocum v. Delaware, L. & W. R. R., 1950, 339 U.S. 239, 244, 70 S.Ct. 577, 94 L.Ed. 795 and Order of Ry. Conductors v. Southern Ry., 1950, 339 U.S. 255, 70 S.Ct. 585, 94 L.Ed. 811, the Supreme Court has held that primary jurisdiction in such cases as these lies in the Board and not in the courts, state or federal. See Pennsylvania R. R. Co. v. Day, 1959, 360 U.S. 548, 79 S.Ct. 1322, 3 L.Ed.2d 1422 and Union Pac. R. R. Co. v. Price, 1959, 360 U.S. 601, 79 S.Ct. 1351, 3 L. Ed.2d 1460, for the most recent reiterations and applications of this rule. The plaintiffs, themselves, acknowledge that “disputes between carriers and their employees as to interpretation of existing agreements must be referred to the National" }, { "docid": "23507022", "title": "", "text": "the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure. The Supreme Court explained the difference between exhaustion and primary jurisdiction in United States v. Western Pacific Railroad Co., 352 U.S. 59, 63-65, 77 S.Ct. 161, 165-66, 1 L.Ed.2d 126 (1956): The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. “Exhaustion” applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. “Primary jurisdiction,” on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433 [60 S.Ct. 325, 331, 84 L.Ed. 361 (1940)]. The doctrine of primary jurisdiction thus does “more than prescribe the mere procedural time table of the lawsuit. It is a doctrine allocating the lawmaking power over certain aspects” of commercial relations. “It transfers from court to agency the power to determine” some of the incidents of such relations. (Footnote omitted). Justice Harlan, writing for the Court in Western Pacific, emphasized the necessity for applying the doctrine of primary jurisdiction on a case-by-case basis, and identified the two principal considerations to be taken into account: No fixed formula exists for applying" }, { "docid": "22229038", "title": "", "text": "on it for its holding, it places more weight on Greate Bay than it will bear, placing Greate Bay in conflict with our opinions in Edelson and Hamilton, the Supreme Court’s opinion in Reiter and the other cases discussed supra. E. In sum, I conclude that, although the district court has subject matter jurisdiction over Teleconcepts’ third-party claim, the exclusive primary jurisdiction of the PUC is part of the substantive law of Pennsylvania. Accordingly, to the extent that a Pennsylvania state court is unable to grant relief at this time, an Ane-bound federal court likewise may not ordinarily grant it. II. A. I use “ordinarily” to refer to the posture in which this type of case usually comes before a district court — the situation in which one or more of the parties raises the issue of exclusive primary jurisdiction as a bar to relief in the federal forum. In such a case, the court should abstain from exercising its jurisdiction pending completion of proceedings before the administrative agency. This case, however, is different because exclusive primary jurisdiction was not litigated in the district court. If exclusive primary jurisdiction did divest the district court’s subject matter jurisdiction, the majority would be undeniably correct in reaching the issue sua sponte for the first time on appeal. As I have already shown, subject matter jurisdiction is not implicated; thus, we would not normally reach the issue at this stage of the proceedings. B. In primary jurisdiction eases, however, we have discretion to consider on our own motion whether that doctrine applies. See Northwest Airlines, — U.S. at -n. 10, 114 S.Ct. at 863 n. 10; Western Pacific, 352 U.S. at 63, 77 S.Ct. at 165. In Western Pacific, the Supreme Court reached that issue because of the public concern over the proper relationship between the courts and the ICC. 352 U.S. at 63, 77 S.Ct. at 165. There, the courts’ interpretations of public tariffs had the potential to differ significantly from those of the agency charged with their regulation, with the potential of causing uncertainty and resulting in harm to either shippers" }, { "docid": "22229026", "title": "", "text": "have been placed within the special competence of an administrative body; in such a ease the judicial process is suspended pending referral of such issues to the administrative body for its views. Id. at 63-64, 77 S.Ct. at 165 (citing General American Tank Car, 308 U.S. at 433, 60 S.Ct. at 331). I therefore conclude that when the Western Pacific Court spoke of transferring “the power” to determine the parties’ relations from the court to the agency, see majority at 1106, it was speaking of a jurisprudential deference predicated on administrative rulemaking authority, not subject matter jurisdiction. B. Article III of the Constitution defines the outer limits of a federal district court’s subject matter jurisdiction. By statute, Congress may choose to grant jurisdiction short of those limits, for example, by requiring complete rather than minimal diversity, or by imposing jurisdictional amounts in diversity cases. Determining subject matter jurisdiction is not a particularly complex task; as the Supreme Court has stated, “[t]he Constitution must have given to the court the capacity to take it, and an act of Congress must have supplied it....” Finley v. United States, 490 U.S. 545, 548, 109 S.Ct. 2003, 2006, 104 L.Ed.2d 593 (1989) (quoting The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 252, 18 L.Ed. 851 (1868)). Thus, if Congress wishes to confer exclusive jurisdiction on a federal administrative agency and divest the district courts of that jurisdiction, it would be within its constitutional power to do so, although it did not do so in the cases discussed above. Under the Supremacy Clause, Congress may likewise confer exclusive primary jurisdiction on a federal court or administrative agency and divest the state courts of what would otherwise be within their subject matter jurisdiction. This unremarkable principle explains the “exclusive” primary jurisdiction of the National Railway Adjustment Board found by the Supreme Court in two of the cases the majority relies upon. See Pennsylvania R.R. Co. v. Day, 360 U.S. 548, 552, 79 S.Ct. 1322, 1325, 3 L.Ed.2d 1422 (1959); Slocum v. Delaware, L. & W. R.R. Co., 339 U.S. 239, 244, 70 S.Ct. 577, 580," }, { "docid": "23369296", "title": "", "text": "the employer, Railway Express, based on an alleged federal cause of action was properly dismissed. The complaint does not allege that Railway Express acted from a motive to discriminate or with knowledge that the Brotherhood was discriminating. Wallace Corp. v. N. L. R. B., 1944, 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216; Brotherhood of Railway Trainmen v. Howard, 1952, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283. Nor is the employer a necessary party in a suit against the bargaining agent for discrimination. Conley v. Gibson, supra. Any claims which the employees may have against Railway Express based on rights arising under the collective bargaining agreement are within the primary jurisdiction of the Railway Adjustment Board. Order of Ry. Conductors v. Pitney, 1946, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318; Slocum v. Delaware, L. & W. R. Co., 1950, 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Order of Ry. Conductors of America v. Southern Ry. Co., 1950, 339 U.S. 255, 70 S.Ct. 585, 94 L.Ed. 811; Pennsylvania R. R. Co. v. Day, 1959, 360 U.S. 548, 79 S.Ct. 1322, 3 L.Ed.2d 1422; Stack v. New York Central R. Co., 2 Cir., 1958, 258 F.2d 739; Broady v. Illinois Central R. Co., 7 Cir., 1951, 191 F.2d 73, cert. denied 342 U.S. 897, 72 S.Ct. 231, 96 L.Ed. 672. Cunningham v. Erie R. R. Co., supra, is not to the contrary and does not require a finding that there is jurisdiction over Railway Express if the complaint states a valid claim of discrimination against the Brotherhood. Cunningham sued his union and his employer for reinstatement and back pay because he claimed that his employer had discharged him in accordance with the terms of a union shop agreement when he was expelled from the union because of his activities within the union. Since the Railway Labor Act allows an employer and bargaining agent to enter into a closed shop agreement only on condition that union membership will not be denied employees for any reason other than the nonpayment of dues and fees, “uniformly required as" }, { "docid": "2054895", "title": "", "text": "upon an agency’s sphere of responsibility and expertise. See Sam S. Goldstein Industries, Inc. v. Botany Industries, Inc., 301 F.Supp. 728, 731 (S.D.N.Y.1969). This doctrine is the explicit basis of the decisions primarily relied upon by the District Judge in his dismissal of Goya’s complaint and denial of leave to amend, see, e.g., C-Cure Chemical Co. v. Secure Adhesives Corp., 571 F.Supp. 808, 823 (W.D.N.Y.1983); The Driving Force, Inc. v. Manpower, Inc., 498 F.Supp. 21, 24 (E.D.Pa.1980). The doctrine of primary jurisdiction represents a version of the administrative exhaustion requirement under circumstances in which a judicially cognizable claim is presented but “enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body....” United States v. Western Pacific R.R., 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). The rationale for the doctrine is two-fold. First, it ensures “ ‘[ujniformity and consistency in the regulation of business entrusted to a particular agency.’ ” Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 303-04, 96 S.Ct. 1978, 1987, 48 L.Ed.2d 643 (1976) (quoting Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952)). Second, the doctrine is intended to recognize that, with respect to certain matters, “the expert and specialized knowledge of the agencies” should be ascertained before judicial consideration of the legal claim. United States v. Western Pacific R.R., supra, 352 U.S. at 64, 77 S.Ct. at 165. As the Supreme Court has observed in light of these factors: The doctrine of primary jurisdiction thus does “more than prescribe the mere procedural timetable of the lawsuit. It is a doctrine allocating the law-making power over certain aspects” of commercial relations. “It transfers from court to agency the power to determine” some of the incidents of such relations. Id. at 65, 77 S.Ct. at 165-66 (quoting Jaffe, Primary Jurisdiction Reconsidered, 102 U.Pa.L.Rev. 577, 583-84 (1954)). An examination of the cases illustrates the relatively narrow scope of the doctrine of primary jurisdiction. The doctrine has been applied only when" }, { "docid": "22229015", "title": "", "text": "term may imply, does not speak of the jurisdictional power of the federal courts[]”). However, none of these eases addressed the issue of the authority of a federal court to adjudicate a matter that a state legislature had placed within the exclusive domain of a state administrative agency. Accordingly, our analysis here is consistent with the results reached in such cases. See U.S. v. Western Pacific Railroad, 352 U.S. 59, 63, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). There, the court stated: [t]he doctrine of primary jurisdiction thus does ‘more than prescribe the mere procedural timetable of the law suit. It is a doctrine allocating the law making power over certain aspects’ of commercial relations. ‘It transfers from court to agency the power to determine’ some of the incidents of such relations. 352 U.S. at 65, 77 S.Ct. at 166 (emphasis added). See also, Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795 (1950), and Pennsylvania Railroad Co. v. Day, 360 U.S. 548, 79 S.Ct. 1322, 3 L.Ed.2d 1422 (1959), and Greate Bay Hotel and Casino, supra. The Commonwealth of Pennsylvania has committed the issues raised by Teleconcepts’ claim against Bell to the exclusive jurisdiction of the Pennsylvania Public Utilities Commission and a federal court cannot amend state law by exercising supplemental jurisdiction. Indeed, a contrary holding would mean that the federal courts are empowered to decide matters of state law that courts in the affected state lack authority to resolve. Since the Supreme Court of Pennsylvania has held that “the Public Utility Commission has been vested by the legislature with exclusive original jurisdiction ...” of the issues which this suit requires us to resolve, Behrend v. Bell Telephone Co., 431 Pa. 63, 243 A.2d 346, 347 (1968), we must remand to the district court for appropriate proceedings. Accordingly, we will reverse the district court’s grant of summary judgment in favor of Bell and remand so that the district court can transfer the third-party claim to the PUC for a determination of liability. The district court retains jurisdiction over this matter pending" }, { "docid": "2359316", "title": "", "text": "A. Ry. & Navigation Co., 228 U.S. 87, 33 S.Ct. 443, 57 L.Ed. 742 (1913); United States v. Yellow Freight Sys., 762 F.2d 737 (9th Cir. 1985). . The importance of ensuring Congressional intent to place the initial consideration of an issue with an agency before finding that judicial deferral is warranted is made clear by the fact that [t]he doctrine of primary jurisdiction ... does \"more than prescribe the mere procedural time table of the lawsuit. It is a doctrine allocating the lawmaking power over certain aspects” of commercial relations. \"It transfers from court to agency the power to determine” some of the incidents of such relationships. Western Pac. R.R., 352 U.S. at 65, 77 S.Ct. at 166 (quoting Jaffe, Primary Jurisdiction Doctrine Reconsidered, 102 U.Pa.L.Rev. 577, 583-84 (1954)). In some cases, as here, see supra at 1360, the referring court has no authority to review the agency’s determination. See Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 69-71, 91 S.Ct. 203, 208-09, 27 L.Ed.2d 203 (1970). Thus, given that the primary jurisdiction doctrine is in effect, a power-allocating mechanism, a court must not employ the doctrine unless the particular division of power was intended by Congress. A comparison of the district court’s formulation of the scope of the primary jurisdiction doctrine in this case with the Supreme Court’s formulation is revealing. The district court would require only that the administrative body have competence \"to consider an issue” while the Supreme Court would have the primary jurisdiction doctrine come \"into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” Western Pac. R.R., 352 U.S. at 64, 77 S.Ct. at 165 (emphasis added). The distinction can be illustrated with a homely example: If a canner sued a grower for delivering undersized asparagus and there existed an agency empowered to establish size guidelines for asparagus, the issue of undersized asparagus would be one placed within the competence of the agency. If, on the other hand, Congress merely provided a" }, { "docid": "2054896", "title": "", "text": "U.S. 290, 303-04, 96 S.Ct. 1978, 1987, 48 L.Ed.2d 643 (1976) (quoting Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952)). Second, the doctrine is intended to recognize that, with respect to certain matters, “the expert and specialized knowledge of the agencies” should be ascertained before judicial consideration of the legal claim. United States v. Western Pacific R.R., supra, 352 U.S. at 64, 77 S.Ct. at 165. As the Supreme Court has observed in light of these factors: The doctrine of primary jurisdiction thus does “more than prescribe the mere procedural timetable of the lawsuit. It is a doctrine allocating the law-making power over certain aspects” of commercial relations. “It transfers from court to agency the power to determine” some of the incidents of such relations. Id. at 65, 77 S.Ct. at 165-66 (quoting Jaffe, Primary Jurisdiction Reconsidered, 102 U.Pa.L.Rev. 577, 583-84 (1954)). An examination of the cases illustrates the relatively narrow scope of the doctrine of primary jurisdiction. The doctrine has been applied only when a lawsuit raises an issue, frequently the validity of a commercial rate or practice, committed by Congress in the first instance to an agency’s determination, “particularly when the issue involves technical questions of fact uniquely within the expertise and experience of an agency.” Nader v. Allegheny Airlines, Inc., supra, 426 U.S. at 304, 96 S.Ct. at 1987. See, e.g., Far East Conference v. United States, supra (antitrust action challenging shipping rates properly within primary jurisdiction of the Federal Maritime Board); Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907) (shipper challenging carrier’s rate must seek redress initially through the Interstate Commerce Commission); Danna v. Air France, 463 F.2d 407 (2d Cir.1972) (claim under Federal Aviation Act challenging reasonableness and discriminatory effect of airline’s tariff initially a question for Civil Aeronautics Board). Application of the doctrine has been refused when the issue at stake is legal in nature and lies within the traditional realm of judicial competence. See Nader v. Allegheny Airlines, supra (Civil Aeronautics Board" } ]

[ { "docid": "22701824", "title": "", "text": "name Pablo. Nor did she mention watch batteries. The Agent further testified, without objection, that she “didn’t believe her story.” At the close of trial, the court instructed the jury that the government “is not required to prove that the amount or quantity of marijuana was as charged in the indictment. It need only prove beyond a reasonable doubt there was a measurable or detectable amount of marijuana.” The jury returned a verdict of guilty on both counts after less than three hours. After a sentencing hearing on January 3, 2000, the district court sentenced Mendoza-Paz to twenty-one months. The judgment and commitment was filed on January 3, 2000, and Mendoza-Paz filed a Notice of Appeal on the same day. II. Discussion A. Constitutionality of 21 U.S.C. §§ 841 and 960 Mendoza-Paz contends that 21 U.S.C. § 841(a)(1) and § 960 are facially unconstitutional because they require the determination of drug quantity, and therefore the establishment of the applicable maximum sentence, to be made by the judge rather than a jury. Thus, MendozaPaz reasons, this scheme violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Mendoza-Paz’s argument that 21 U.S.C. § 841(a)(1) is unconstitutional is foreclosed by our recent decision in United States v. Buckland, 277 F.3d 1173 (9th Cir.2002) (en banc), which held that the provisions of Section 841 are constitutional. Applying the rationale of Buckland, we must also reject Mendoza-Paz’s facial constitutional challenge to 21 U.S.C. § 960. Neither statute requires that the issue of drug quantity be committed to the sentencing judge rather than the jury, Because the statutes are “ ‘silent on the question of what procedures courts are to use in implementing its provisions ..., the rule in Apprendi in no way conflicts with the explicit terms of the statute.’” Buckland, 277 F.3d at 1180 (quoting United States v. Cernobyl, 255 F.3d 1215, 1219 (10th Cir.2001)). As we noted in Buckland, the drug statutes are most striking for what they do not say. Buckland, 277 F.3d at 1179. Like Section 841, and unlike the statute examined in Apprendi v." } ]

[ { "docid": "23516891", "title": "", "text": "the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. Title 21 U.S.C. § 960, the statute governing the defendants’ sentences for Counts 1 and 4, provides differing penalties according to the quantity of various drugs trafficked by the defendant. Following Thomas, it is clear that drug quantity is an element of a § 960 offense “that must be charged in the indictment and submitted to the jury for its finding beyond a reasonable doubt.” 274 F.3d at 673; see also United States v. Chavez, 267 F.3d 76, 78-79 (2001) (per curiam) (applying an Apprendi analysis to a sentence entered under § 960); United States v. Dennis, 271 F.3d 71, 74 (2d Cir.2001) (per curiam) (same). In this case, although quantity was alleged in the defendants’ indictments, the District Court instructed the jury that it need not consider the quantity of drugs trafficked by the defendants. Therefore, because we are remanding this case for resentencing so that the District Court may consider “foreign drugs,” when recalculating the sentences the District Court must do so in accord with the principles of Apprendi. Thus, although the District Court may find, by a preponderance of the evidence standard, the quantity of drugs trafficked by the defendants and use this quantity in its calculations under the Sentencing Guidelines, the resulting sentence cannot exceed the statutory maximum. See United States v. Garcia, 240 F.3d 180, 183 (2d Cir.2001) (holding that Apprendi has not affected the district court’s authority to determine facts for sentencing at or below the statutory maximum). In this case, the statutory maximum for Counts 1 and 4 is set by 21 U.S.C. § 960(b)(4), which is applicable to a drug importation offense involving an unspecified amount of hashish. C.f. Chavez, 267 F.3d at 79 (affirming sentence under § 960(b)(3) for offense involving unspecified amount of heroin). 2. Role in the Offense The District Court found that Greer and Hutchins were managers or supervisors of criminal activity rather than leaders or organizers, and, accordingly," }, { "docid": "19804568", "title": "", "text": "than five kilograms of cocaine because he had pleaded guilty to “three kilos” and had sought a Fatico hearing. The court responded, “Whatever count that you pled to calls for a mandatory minimum.” It then sentenced Culbertson to 120 months’ imprisonment. This appeal followed. DISCUSSION 1. The Factual Basis for the Guilty Plea Culbertson argues that the District Court violated Federal Rule of Criminal Procedure 11(b)(3) by accepting his guilty plea without an adequate factual basis. He contends that he consistently and explicitly challenged the statutorily prescribed drug quantity of five kilograms or more of cocaine and maintained that he was responsible for only three kilograms. a. Standard of Review “We review for ... abuse of discretion a district court’s decision that a defendant’s factual admissions support conviction on the charge to which he has pleaded guilty.” United States v. Adams, 448 F.3d 492, 498 (2d Cir.2006). In the wake of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), however, we recognize that “a defendant cannot be convicted on an aggravated [drug] offense unless the statutory drug quantity is proved to a jury or admitted by the defendant.” United States v. Gonzalez, 420 F.3d 111, 124 (2d Cir.2005). b. Factual Basis for Drug Quantity We have previously held that in order to provide a factual basis for a plea to a drug conspiracy charge under 21 U.S.C. § 841(b)(1)(A), an allocution must establish that the “drug type and quantity were at least reasonably foreseeable to the co-conspirator defendant.” Adams, 448 F.3d at 499. In United States v. Gonzalez, for example, we reviewed the adequacy of a plea allocution regarding drug quantity under Rule 11(b)(3) by a defendant who was charged under § 841(b)(1)(A) with conspiring to distribute 50 grams or more of crack cocaine, an amount that carried a twenty-year mandatory minimum sentence. Gonzalez, 420 F.3d at 119, 121, 133. Gonzalez, the defendant, “specifically declined to plead guilty to conspiring to distribute the charged fifty grams or more of crack, explaining ... that he had never intended to sell the informant a kilogram of" }, { "docid": "16321935", "title": "", "text": "Opinion by Judge BROWNING; Dissent by Judge GOULD. OPINION BROWNING, Circuit Judge. Frederico Angel Villalobos pled guilty to one count of conspiracy to distribute heroin and stipulated that between 100-400 grams of heroin were involved. Before sentencing, Villalobos moved to withdraw his plea, arguing that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) had changed the government’s burden of proof as to drug quantity and that his pre-Apprendi plea was not knowing, intelligent and voluntary. The district court denied the motion and sentenced Villalobos to 60 months. He appeals. We reverse and remand. 1. Facts and Procedural History Villalobos was indicted on two counts of violating drug laws. Count one charged conspiracy to distribute heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. Count two alleged possession of heroin with intent to distribute in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2. The indictment alleged that each count involved one kilogram or more of heroin. The plea agreement and plea colloquy focused only on count 1, charging conspiracy to distribute heroin under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and specified that the government would have the burden of proving two elements beyond a reasonable doubt: (1) that there was an agreement between two or more persons to distribute heroin during the relevant time period; (2) that Villalobos became a member of the conspiracy knowing of its object and intending to help accomplish it. Villalobos pled guilty to count 1 and stipulated in his plea agreement that the amount of heroin involved was at least 100 grams but less than 400 grams. Before Villalobos’ sentencing, the U.S. Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Villa-lobos moved to withdraw his plea, arguing that 21 U.S.C. § 841 was unconstitutional and that Apprendi’s change in" }, { "docid": "3665653", "title": "", "text": "in Booker’s crimes was crack cocaine. II. Disoussion A. Apprendi Apprendi v. New Jersey holds that factors which subject a defendant to an enhanced penalty, except prior felony convictions, are elements of the crime that must be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt. See 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000); United States v. Westmoreland, 240 F.3d 618, 631-32 (7th Cir.2001); United States v. Nance, 236 F.3d 820, 824-25 (7th Cir.2000). At first glance, Booker’s sentence appears to violate Apprendi because the judge did not submit the issues of drug quantity and type to the jury as elements of the crimes, yet he sentenced Booker in excess of the 20 year statutory maximum prescribed by 21 U.S.C. § 841(b)(1)(C). Closer scrutiny, however, shows that there is no Apprendi violation. 21 U.S.C. § 841(b)(1)(C), which establishes the 20 year statutory maximum penalty for Booker’s crimes, creates an exception to the 20 year ceiling: If any person commits [a violation punishable under § 841(b)(1)(C) ] after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years.... The government presented evidence that Booker was convicted of a felony drug offense in 1992, and Apprendi specifically exempts prior felonies from its proof requirements. See 120 S.Ct. at 2362-63. Because Booker’s prior felony conviction properly subjected him to sentences of up to 30 years and neither of Booker’s 292 month sentences exceeds 30 years, there is no Apprendi violation. Even if Booker’s sentences were in derogation of Apprendi we would affirm. We review the district judge’s actions for plain error because Booker raises the Apprendi issue for the first time on appeal. See Fed.R.CRImP. 52(b); Nance, 236 F.3d at 825. A mistake constitutes plain error if there is (1) an error (2) that was clear and obvious and which (3) affected the substantial rights of the defendant. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). If these factors" }, { "docid": "21748032", "title": "", "text": "during which the district court made findings regarding the quantities of cocaine and cocaine base attributable to each defendant, the court sentenced Roberts to 10 life sentences and two 360 month sentences, all to run concurrently; Covington to 11 life sentences, eight 360 month sentences, and one 240 month sentence, all to run concurrently; Gumbs to two 151 month sentences and three 120 month sentences, all to run concurrently; and Santos to four 360 month sentences, all to run concurrently. From the entry of judgments, these four defendants timely appealed. II For their most significant argument on appeal, the defendants contend that, under the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), they were entitled to have drug quantities determined by the jury under the reasonable-doubt standard, instead of by the court at a sentencing hearing under the preponderance standard. In Apprendi, the Supreme Court held that,”[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” 120 S.Ct. at 2362-63. The defendants contend that unless the jury finds actual drug quantities to justify greater sentencing máximums, the statutory maximum term of imprisonment for each count of conviction under 21 U.S.C. § 841 and 21 U.S.C. § 960 is 20 years. See 21 U.S.C. §§ 841(b)(1)(C), 960(b)(3). Thus, they argue that in the absence of a jury finding as to quantities, any sentence imposed under § 841 and § 960, through the corresponding conspiracy statutes, § 846 and § 963, that exceeds 20 years runs afoul of the Apprendi holding. Because the defendants did not raise the Apprendi objection below, we review their claims for plain error. See United States v. Kinter, 235 F.3d 192, 199 (4th Cir.2000). Under this standard of review, the defendants must establish an error that was plain and that affected their substantial rights. See Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v." }, { "docid": "5379803", "title": "", "text": "leader of the conspiracy. Petitioner has failed to demonstrate that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The Court next addresses the issue of the applicability of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to the case sub judi-ce. In Apprendi, the defendant challenged a New Jersey sentencing scheme that allowed a state judge to enhance a defendant’s penalty beyond the prescribed statutory maximum upon finding, by a preponderance of the evidence, that the defendant committed the underlying crime with a purpose to intimidate a person or group because of race. Apprendi, 120 S.Ct. at 2351. The Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 2362-63. The Court explained that in determining whether a factual finding is an essential element of the offense or merely a sentencing factor, “the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id. at 2365. In the case sub judice, defendant pled guilty to two drug conspiracy counts under 21 U.S.C. §§ 846 and 963, as well as to a money laundering conspiracy count. Contrary to the government’s contention, none of these counts alleged a specific quantity of drugs. Sections 841 and 960 set forth the maximum penalties applicable to petitioner’s convictions under §§ 846 and 963. Sections 841(b)(1)(C) and 960(b)(3) provide for a maximum penalty of 240 months unless the crime involves a quantity of drugs as set forth in other subsections of .those statutes. Sections 841(b)(1)(A) and 960(b)(1) provide, in relevant part, for a minimum penalty of 10 years and a maximum penalty of life imprisonment if the crime involved at least 1 kilogram of heroin, 5 kilograms of cocaine, or 1000 kilograms of marijuana. Sections 841(b)(1)(B) and" }, { "docid": "13277221", "title": "", "text": "WOLLMAN, Chief Judge. Roberto Gallardo Chavez was convicted of one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 8’46, two counts of distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1), and one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). Through its verdict form, the jury found that the quantity of methamphetamine involved was at least 1700 grams. Relying on the pre-sentence investigation report, which suggested that the actual quantity was approximately 81 kilograms, the district court sentenced Chavez to a life sentence on each count. Chavez appeals, and we affirm. Chavez makes two arguments. First, he contends that the district court erred in denying his motion for a verdict of acquittal at the close of the State’s evidence because the State failed to offer evidence sufficient to prove the elements of the crimes charged beyond a reasonable doubt. Second, he argues that Apprendi v. New Jersey, — U.S.—, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires that the drug quantities used in sentencing be found by a jury. In reviewing a district court’s denial of a motion for acquittal based on insufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and reverse only if no reasonable jury could have found that the defendant is guilty beyond a reasonable doubt. See United States v. Lacey, 219 F.3d 779, 783 (8th Cir.2000). Although Chavez does not specify the alleged defects in the State’s evidence, his arguments center on two contentions: (1) the State failed to prove the agreement element of the conspiracy charges, and (2) the State’s witnesses were so lacking in credibility that their testimony was insufficient to support a guilty verdict. To be guilty of conspiracy, a defendant must have knowingly entered into an agreement with at least one other person to violate the law. See id. The government may prove facts in issue in a criminal case by circumstantial as well as by direct evidence. See United States v. Thomas, 914 F.2d 139, 141-42 (8th Cir.1990). “The facts" }, { "docid": "22143762", "title": "", "text": "with the conspiracy count ... the government would have to prove those elements” listed in the plea agreement. Minore said he did. The district court did not tell Minore the government would be required to prove the drug quantity — 25,800 pounds (11,703 kilograms) — to a jury beyond a reasonable doubt. Rather, consistent with the law at that time, the district court told Minore that the court would make the ultimate determination of the amount of drugs for which Minore would be held responsible. The parties agreed in the plea agreement that, pursuant to § 2D1.1 of the Sentencing Guidelines, Minore’s base offense level was 36. See U.S.S.G. § 2Dl.l(a)(3), (c)(2) (Nov. 1, 1998) (assigning base offense level of 36 to violation of §§ 841 and 960 involving between 10,000 and 30,000 kilograms of marijuana). Similarly, the Pre-sentence Report (“PSR”) used the drug quantity to calculate the recommended base offense level of 36. See id. At sentencing, however, Minore contended that the third transaction constituted sentencing entrapment and should be disregarded. He did not dispute his involvement, or the quantity of marijuana at stake, in the first two transactions. The district court rejected Minore’s entrapment argument, adopted the findings and recommendation of the PSR and sentenced Minore to 188 months in prison and five years of supervised release. During the briefing of Minore’s case on appeal, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi applies to Minore’s appeal because it comes to us on direct review. United States v. Buckland, 289 F.3d 558, 563-64 (9th Cir.2002) (en banc) (citing Griffith, v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)), amending and superseding 277 F.3d 1173, cert. denied, — U.S. -, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002). Minore first challenges his conviction on the ground that Apprendi rendered § 960 facially unconstitutional, an argument we rejected in United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002). Minore next chal lenges the validity of his guilty plea because the district court did not inform" }, { "docid": "16321936", "title": "", "text": "focused only on count 1, charging conspiracy to distribute heroin under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and specified that the government would have the burden of proving two elements beyond a reasonable doubt: (1) that there was an agreement between two or more persons to distribute heroin during the relevant time period; (2) that Villalobos became a member of the conspiracy knowing of its object and intending to help accomplish it. Villalobos pled guilty to count 1 and stipulated in his plea agreement that the amount of heroin involved was at least 100 grams but less than 400 grams. Before Villalobos’ sentencing, the U.S. Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Villa-lobos moved to withdraw his plea, arguing that 21 U.S.C. § 841 was unconstitutional and that Apprendi’s change in the law affected his substantial rights at the time of the plea because it went to the government’s burden of proof as to drug quantity. The district court denied Villalobos’ motion to withdraw his plea, finding that the statute was constitutional and that Villalobos had stipulated to drug quantity. The court sentenced Villalobos to 60 months. Villalobos’ appeal challenges his plea. We agree that the district court violated Rule 11 by not informing him of the nature of the charges against him, and remand to permit Villalobos to enter a new plea. See United States v. Odedo, 154 F.3d 937, 939 (9th Cir.1998), abrogated on other grounds by United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002). II. Villalobos’ Guilty Plea In United States v. Minore, 292 F.3d 1109, 1113 (9th Cir.2002), we held that to comply with Rule ll’s requirement that the defendant be informed of the nature of the charge against him, before accepting a plea the district court “must advise the defendant that the government would" }, { "docid": "22890838", "title": "", "text": "hearing to resolve any factual challenges such as drug quantity. See United States v. Wiggins, 104 F.3d 174, 178 (8th Cir.1997). As such, the district court properly calculated Collins’s offense level using the volume of drugs the jury calculated in this case. A sentencing court’s quantity calculations are factual findings and therefore, are reviewed for clear error. United States v. Jimenez-Villasenor, 270 F.3d 554, 561 (8th Cir.2001). A reviewing court will not overturn a finding of drug quantity unless the entire record definitely and firmly convinces the court that a mistake has been made. United States v. Granados, 202 F.3d 1025, 1028 (8th Cir.2000). Collins’s “impossibility” argument fails. The evidence proves that the witnesses knew of Collins’s incarceration and testified that they bought drugs either from him or from Collins’s middlemen when he was not incarcerated. In addition, Collins’s challenge is based (in part) on his attack against the witnesses’ credibility and their recall regarding the amount of drugs he sold to them. We leave this credibility issue for the jury. Chavez, 230 F.3d at 1091; Fuller, 942 F.2d at 458. Despite Collins’s seven-month incarceration, the evidence provided a reasonable jury sufficient evidence to have found Collins guilty beyond a reasonable doubt. C. Sentence Illegality Under Apprendi and the Eighth Amendment Collins next argues that the district court assessed an excessive and illegal sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and the Eighth Amendment. Specifically, Collins argues that the court violated Apprendi by failing to submit his prior convictions to the jury for enhancement purposes. Additionally, he contends the court’s life sentence for these drug offenses constituted “cruel and unusual” punishment under the Eighth Amendment. 1. Alleged Apprendi Violation In Apprendi, the United States Supreme Court stated, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. We have applied this rule in United States v. Carter, 270 F.3d 731" }, { "docid": "8049148", "title": "", "text": "OPINION OF THE COURT BECKER, Chief Judge. This is yet another Apprendi case. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). It comes to us in a novel procedural posture: (1) Apprendi was decided between the guilty plea and the sentencing; (2) the defendant clearly raised the Apprendi issue at sentencing; and (3) the defendant demonstrated what we find to be non-harmless Apprendi error. The defendant is Dean Henry, who appeals from the judgment of the District Court of the Virgin Islands which imposed a sentence following a guilty plea to a one-count indictment charging him with possession with intent to distribute 5 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(B)(iii). Although Henry entered a plea to possession with intent to distribute a controlled substance, he has never admitted to possessing cocaine and it appears highly possible, in light of the less than textbook perfect police investigation, that the only controlled substance that he possessed was marijuana. Henry submits that both the identity and quantity of the drugs were elements of the crime that he was entitled to have determined beyond a reasonable doubt. Thus, he contends, the District Court violated the teachings of Apprendi when it alone determined these issues (by a preponderance of the evidence) at the sentencing hearing, sentencing him to the mandatory minimum sentence of 60 months for cocaine base under § 841(b)(l)(B)(iii). The primary question on appeal is whether facts that determine in the first instance the statutory maximum under which a defendant is to be sentenced— here particularly drug identity' — are elements that need to be determined beyond a reasonable doubt by a jury. This question is governed by Apprendi and by our recent opinion in United States v. Barbosa, 271 F.3d 438 (3d Cir.2001), where we held that the statutory maximum penalty that can be imposed on a defendant when drug identity is not known or found by the jury is one year, the lowest statutory maximum under the “catch-all” provisions of S 841. See Barbosa, 271 F.3d" }, { "docid": "23516890", "title": "", "text": "the court fac- tored into relevant conduct under § IB 1.3 the fact that the drugs were destined for a foreign nation and were the subject of foreign prosecution. Because this is a misapplication of the Guidelines, we vacate the sentences and remand for resentenc- ing. The resentencing of the defendants must be conducted in accord with the holding of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and United States v. Thomas, 274 F.3d 655 (2d Cir.2001). See United States v. Grimes, 142 F.3d 1342, 1351 (11th Cir.1998) (“The general rule is that a defen- dant should be sentenced under the law in effect at the time of sentencing.”), cert. denied, 525 U.S. 1088, 119 S.Ct. 840, 142 L.Ed.2d 695 (1999); c.f. United States v. Kirkham, 195 F.3d 126, 132 n. 5 (2d Cir.1999) (“[O]n remand [defendant’s] sentence is governed by the version of the Guidelines in effect at the time of tencing”). Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. Title 21 U.S.C. § 960, the statute governing the defendants’ sentences for Counts 1 and 4, provides differing penalties according to the quantity of various drugs trafficked by the defendant. Following Thomas, it is clear that drug quantity is an element of a § 960 offense “that must be charged in the indictment and submitted to the jury for its finding beyond a reasonable doubt.” 274 F.3d at 673; see also United States v. Chavez, 267 F.3d 76, 78-79 (2001) (per curiam) (applying an Apprendi analysis to a sentence entered under § 960); United States v. Dennis, 271 F.3d 71, 74 (2d Cir.2001) (per curiam) (same). In this case, although quantity was alleged in the defendants’ indictments, the District Court instructed the jury that it need not consider the quantity of drugs trafficked by the defendants. Therefore, because we are remanding this case for resentencing so" }, { "docid": "23180852", "title": "", "text": "no other evidence in the record for this Court to consider in making its determination. S. Error Which Seriously Affects Fairness or Integrity of the Plea Finally, we further find that the Rule 11(d) error does not “seriously [affect] the fairness, integrity or public reputation of judicial proceedings.” Jimenez does not argue, nor is there any indication in the record, that his plea was either unknowing or involuntary. Accordingly, Jimenez has failed to show that the deviation from Rule 11(d) seriously affected the fairness or integrity of this plea. See Minore, 292 F.3d 1109, 1118 (Rule 11(c) error did not seriously affect integrity or fairness of plea where defendant unequivocally admitted that he should be held responsible for quantity of marijuana); see also United States v. Vonn, 294 F.3d 1093 (9th Cir.2002) (no plain error where record demonstrated plea was voluntary); United States v. Ma, 290 F.3d 1002, 1005 (9th Cir.2002) (no plain error where record demonstrated defendant understood terms of plea agreement). Thus, we find that Jimenez has failed to demonstrate that the district court’s literal failure to inquire about “prior discussions” was plain error. III. ENHANCED SENTENCE BASED UPON COURT’S FINDING OF AGGRAVATED FELONY CONVICTIONS Citing the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Jimenez contends that his sentence should be vacated because the district court used his prior aggravated felony convictions to increase his sentence beyond the statutory maximum under 8 U.S.C. section 1326(a). However, Defendant concedes that this Court has explicitly rejected this argument in United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir.2000). Thus, Jimenez’s challenge to his sentence based upon Apprendi is without merit. The district court’s use of Jimenez’s aggravated felony convictions to increase his sentence was not plain error. IV. CONCLUSION Jimenez has failed to demonstrate that the district court’s literal deviation from Rule 11(d) constituted anything more than a minor or technical error. To the contrary, his failure to argue that his plea was unknowing or involuntary, coupled with the record of the Rule 11 colloquy, bespeaks the lack" }, { "docid": "23213688", "title": "", "text": "quantity of drug — that determine the maximum penalties for such violations. Although we squarely rejected this argument in United States v. Buckland, 289 F.3d 558, 562 (9th Cir.2002) (en banc) (holding 21 U.S.C. § 841 constitutional) and United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002) (holding 21 U.S.C. § 960 constitutional), Hernandez now claims that Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), requires us to hold that Buckland and Mendoza-Paz were wrongly analyzed and that the Supreme Court has overruled these precedents. We reject this argument and hold that Buckland and Mendoza-Paz have continuing validity in light of Harris, which did not overrule nor undermine them. Appellant’s first argument, that Harris overrules Buckland and Mendozo-Paz, is based on our reasoning in Buckland indicating that the difference in labels between “sentencing factors” and “elements of a crime” was not important. Applying Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we asked in Buckland: “does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Buckland, 289 F.3d at 566 (quoting Apprendi, 530 U.S. at 494, 120 S.Ct. 2348). Hernandez contends that Buckland’s minimizing the distinction between “ele ments of the offense” and “sentencing factors” lacks validity in light of the Supreme Court’s decision in Harris v. United States, — U.S. -, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). We disagree. Harris is consistent with Buckland and holds that “ ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum,’ whether the statute calls it an element or a sentencing factor, ‘must be submitted to a jury, and proved beyond a reasonable doubt.’ ” Id. at 2410. (quoting Apprendi 530 U.S. at 490, 120 S.Ct. 2348) (emphasis added). It is the “effect” of the fact that is important. Apprendi, 530 U.S. at 494, 120 S.Ct. 2348; Buckland, 289 F.3d at 566; Mendoza-Paz, 286 F.3d at 1110. Hernandez’s second argument that Harris trumps Buckland is based on" }, { "docid": "22859964", "title": "", "text": "district court did not abuse its discretion when it granted Hernandez a limited evidentiary hearing. IV We turn to Hernandez’s challenge that the drug statutes in 21 U.S.C. §§ 841 and 960 violate the Fifth and Sixth Amendments by taking from the jury, and giving to the trial judge, fact determinations — -the type and quantity of drug — that determine the maximum penalties for such violations. Although we squarely rejected this argument in United States v. Buckland, 289 F.3d 558, 562 (9th Cir.2002) (en banc) (holding 21 U.S.C. § 841 constitutional) and United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002) (holding 21 U.S.C. § 960 constitutional), Hernandez now claims that Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), requires us to hold that Buckland and Mendoza-Paz were wrongly analyzed and that the Supreme Court has overruled these precedents. We reject this argument and hold that Buckland and Mendoza-Paz have continuing validity in light of Harris, which did not overrule nor undermine them. Appellant’s first argument, that Harris overrules Buckland and Mendoza-Paz, is based on our reasoning in Buckland indicating that the difference in labels between “sentencing factors” and “elements of a crime” was not important. Applying Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we asked in Buckland: “does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Buckland, 289 F.3d at 566 (quoting Apprendi, 530 U.S. at 494, 120 S.Ct. 2348). Hernandez contends that Buckland’s minimizing the distinction between “elements of the offense” and “sentencing factors” lacks validity in light of the Supreme Court’s decision in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). We disagree. Harris is consistent with Buckland and holds that “ ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum,’ whether the statute calls it an element or a sentencing factor, ‘must be submitted to a jury, and proved beyond a reasonable" }, { "docid": "22690533", "title": "", "text": "is without merit. D. Constitutionality of the sentencing statutes after Apprendi Carranza challenges the constitutionality of 21 U.S.C. §§ 841(b) and 960(b), the statutes under which he was sentenced. The constitutionality of a statute is a question of law reviewed de novo. See United States v. Jones, 231 F.3d 508, 513 (9th Cir.2000). We hold that the statutes under which Carranza was sentenced are constitutional on their face and as applied in this case. A recent Ninth Circuit en banc decision explicitly held 21 U.S.C. § 841 to be facially constitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). United States v. Buckland, 277 F.3d 1173, 1187 (9th Cir.2002) (en banc). By extension of the reasoning in Buckland, this Court held that 21 U.S.C. § 960 is also facially constitutional under Apprendi. United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002). Carranza’s as-applied challenge to the constitutionality of sections 841 and 960 also fails. As in Mendozar-Paz, Carranza was never exposed to a sentence beyond the prescribed statutory maximum. Id. at 1110-11. The court in Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Carranza was never exposed to a sentence greater than 60 months’ imprisonment, the maximum to which he constitutionally may be exposed under sections 960(b)(4) and 841(b)(1)(D). Because the district court in Carranza’s case did not exceed the maximum sentence permitted by the statutes for an unspecified amount of marijuana, Apprendi is not implicated. E. Mens rea as to type and quantity of the controlled substance Carranza’s final argument is that the district court erred when it instructed the jury that the government did not have to prove that Carranza knew that the substance was marijuana or that Carranza knew the amount of the substance. “Whether a jury instruction misstates elements of a statutory crime is a question of law [and] reviewed de" }, { "docid": "7363093", "title": "", "text": "Guidelines. The district court therefore erred by setting his base offense level in accordance with the schedule for career offenders set forth in § 4B1.1. III. Quantity of Marijuana Martinez pled guilty to one count of a violation of 21 U.S.C. §§ 952 and 960. The transcript of the plea hearing reveals that Martinez answered “Yes” to the question: “as a factual basis for your plea, on or about February 11th of this year, did you intentionally bring approximately 60 kilograms of marijuana into the United States?” The government concedes, however, that not less than 10% of that total weight was packaging, which means that for purposes of the Sentencing Guidelines, Martinez’s base offense level (without the career offender enhancement) was 20. See U.S.S.G. § 2D1.1(c)(10). Martinez reserved the right to appeal the quantity of marijuana only with respect to the sentencing enhancement related to the career offender finding; he did not contest the quantity finding for purposes of his conviction. Thus, we have no occasion to consider his challenge to the district court’s adoption of the 10% figure. CONCLUSION We REVERSE the district court’s finding that Martinez was a career offender under the Sentencing Guidelines, and REMAND for resentencing. . Martinez further contends that the Supreme Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), required the Government to charge in the indictment, submit to a jury, and prove beyond a reasonable doubt that he imported more than 50 kilograms of marijuana. We need not reach the Apprendi issue at this stage, however, because until Martinez is resentenced, we have no way of knowing whether the alleged violation prejudiced him. If on resentencing Martinez were sentenced to less than five years- — the statutory maximum for fewer than 50 kilograms of marijuana — then the alleged Apprendi error would have caused him no prejudice. See United States v. Scheele, 231 F.3d 492 (9th Cir.2000) (holding that claimed Apprendi error regarding drug quantity need not be considered where defendant was sentenced to less than the statutory maximum sentence for the quantity" }, { "docid": "21755721", "title": "", "text": "delivered to Robert Lohr through the gas station. The jury could reasonably infer that Vanessa Lohr was a part of the conspiracy from this evidence that she acted to advance its purposes. In light of the foregoing, we conclude that the jury’s verdicts with respect to the drug charges were amply supported by the evidence. 2. Sentencing Considerations Sherman, Diaz, and Robert Lohr contend that, because the district, court relied on drug quantities it determined using a preponderance of the evidence standard, they were sentenced in violation of the Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Diaz also challenges the district court’s determination that his sentence was subject to a role enhancement as an organizer or leader of a conspiracy involving more than five people. a. Apprendi Claims Under Apprendi, “any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348; see United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir.2000). The use of a judicially determined drug quantity as a basis for sentencing, however, is permissible so long as the defendant’s sentence does not exceed the statutory maximum sentence available for an indeterminate quantity of the drug, the offense simpliciter. United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000). None of the defendants raised an Apprendi argument before the district court, and therefore we review their claims for plain error. United States v. Brown, 203 F.3d 557, 558 (8th Cir.2000) (per curiam). When a defendant is convicted of multiple counts, however, a sentence assessed in violation of Apprendi does not necessarily constitute plain error because “[t]he [Federal Sentencing] Guidelines require a district court to run sentences from multiple counts consecutively, rather than concurrently, if the Guideline sentence exceeds the statutory maximum sentence for each count.” United States v. Sturgis, 238 F.3d 956, 960 (8th Cir.2001) petition for cert. filed, 70 U.S.L.W. 3239 (U.S." }, { "docid": "22143783", "title": "", "text": "34, corresponding to a range of 151 to 188 months in prison. The district court accepted the PSR’s recommendation and sentenced Chi-nawat to 145 months in order to give him credit for the six months he served in a prison in Cambodia. Chinawat also was ordered to serve five years of supervised release. Chinawat raises two Apprendi-based challenges to his sentence. Like Mi-nore, Chinawat argues that § 960 is facially unconstitutional, but this claim is foreclosed by Mendoza-Paz, 286 F.3d at 1109-10. Chinawat next contends that his 145-month sentence violates Apprendi because it was based upon the district court’s preponderance-of-the-evidenee finding that Chinawat was responsible for 8845 kilograms of marijuana. Because the Supreme Court issued Apprendi after China-wat’s sentencing, he did not raise this issue before the district court. We therefore review his sentence for plain error. Ola-no, 507 U.S. at 732, 113 S.Ct. 1770. In doing so, we clarify our Circuit’s approach to the “substantial rights” prong of the plain error inquiry in the context of Ap-prendi sentencing errors. The jury was not instructed to find the amount of marijuana involved in Chinawat’s crimes. Rather, it was instructed that it need find only a measurable or detectable amount. Therefore, the greatest punishment authorized by the jury’s guilty verdict is five years in prison. 21 U.S.C. § 960(b)(4) (prescribing maximum for a violation of § 960(a) involving fewer than 50 kilograms of marijuana). The district court, however, adopted the PSR’s finding that Chinawat was responsible for 8845 kilograms of marijuana. This finding of drug quantity exposed Chinawat to a statutory maximum of life in prison. 21 U.S.C. § 960(b)(1)(G) (prescribing mandatory minimum and maximum for offense involving 1000 kilograms or more of marijuana). Because the district court did not submit the question of drug quantity to the jury for a beyond-a-reasonable-doubt determination, the court violated Apprendi. 403 U.S. at 494, 91 S.Ct. 2022. Moreover, even though Apprendi had not been issued at the time of sentencing, the error is “plain” because it is plain on appeal. Nordby, 225 F.3d at 1060. Chinawat cannot demonstrate, however, that the error affected his" }, { "docid": "10809773", "title": "", "text": "their sole purpose is not to investigate a crime.” Id. at 1176. There is no indication in the present case that the search was a subterfuge for a “general rummaging” for evidence. See id. at 1175 (citation omitted). Thus, the court did not clearly err in its finding that Hartje’s vehicle was inventoried pursuant to standard Conway Police Department procedure. III. Hartje contends that his sentence violates the dictates of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (any fact other than that of a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and found beyond a reasonable doubt), because his sentencing range under the sentencing guidelines, determined partially through a four-level increase in the offense level pursuant to U.S.S.G. § 3Bl.l(a) for being a leader, was 210 to 262 months of imprisonment, a range which he contends exposed him to punishment exceeding the statutory maximum of 240 months to which he could be sentenced under 21 U.S.C. § 841(b)(1)(C) for an offense in which no drug quantity is specified in the indictment or jury verdict. See 21 U.S.C. § 841(b)(1)(C); United States v. Bradford, 246 F.3d 1107, 1113 (8th Cir.2001). Hartje was sentenced only to 210 months, however. So long as the imposed sentence does not exceed the statutory maximum allowable for the crime, Apprendi is not implicated. United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.2000); United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir.2000). Accordingly, this claim fails. Hartje argues that the court did not believe that it had the authority to depart downward under sentencing guideline § 5K2.13 for Hartje’s diminished mental capacity during the time he committed the crimes. We review the district court’s application of the sentencing guidelines de novo and its factual findings for clear error. United States v. Rohwedder, 243 F.3d 423, 425 (8th Cir.2001). Hartje’s counsel raised the possibility of a departure under § 5K2.13 and moved for a full psychiatric evaluation pri- or to sentencing. The court granted the" } ]

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

[ { "docid": "13913139", "title": "", "text": "mentioned only one of the two case numbers, and purported to appeal the decision in “the above-referenced case.” The EEOC opinion denying Plaintiff’s appeal refers only to the retaliation charge. Because the Complaint in this action was filed more than 30 days after Plaintiff’s receipt of notice of the decision of Defendant’s EEO officer, Plaintiff’s Complaint regarding her termination was not timely filed. Plaintiff properly appealed Defendant’s denial of her retaliation charge to the EEOC, which denied her appeal. Plaintiff filed the Complaint in this action 31 days after receiving notice of EEOC’s decision. Because the thirtieth day was a Sunday, Plaintiff argues that under Fed.R.Civ.P. 6(a), her filing on the next business day was timely. In Eastland v. Tennessee Valley Authority, 553 F.2d 364 (5th Cir. 1977), the Fifth Circuit held that 42 U.S.C. § 2000e-16(c) is a congressional grant of jurisdiction to the District Courts, and that its 30 day limit could not be expanded by EEOC regulation. Id. at 368-69. Since Eastland, two District Courts in this Circuit have considered Plaintiff’s Rule 6(a) argument, and have reached opposite conclusions. In Jordan v. Lewis Grocer Co., 467 F.Supp. 113 (N.D.Miss.1979), the Court held that Rule 6(a) could be applied to extend the period for filing a discrimination complaint to include the next Monday. In Smith v. Bailar, 22 FEP Cases 1378 (N.D.Ga.1980), the Court refused to include the following Monday in the 30 day period, citing Eastland. This Court finds the reasoning of Smith to be persuasive. In Smith, Judge Edenfield reasoned that if 42 U.S.C. § 2000e-16(c) is a jurisdictional statute, as the Fifth Circuit held in Eastland, then its 30 day limitation cannot be extended by Rule 6(a). Indeed, Fed.R. Civ.P. 82 provides that the Federal Rules of Civil Procedure “shall not be construed to extend or limit the jurisdiction of the United States district courts.” Furthermore, the Fifth Circuit has held that the analogous 90 day limitations period for private sector employees cannot be extended by the court because the statute is jurisdictional in nature. Prophet v. Armco Steel, Inc., 575 F.2d 579 (5th Cir." }, { "docid": "7935112", "title": "", "text": "§§ 504, 1140, 1142, 53 Stat. 165. The Commissioner argued that the motion was untimely since it was filed one day after the three-month time limit for the filing of such motions. Simon, 176 F.2d at 231. Judge Jerome Frank, in an opinion joined by Chief Judge Learned Hand and Judge Charles Clark disagreed with the Commissioner. They held, in a section of the opinion entitled “Jurisdiction,” that since April 27, 1947, the last day of the three-month period, was a Sunday, the filing of the appeal on Monday, April 28, 1947 was timely, pursuant to Rule 6(a). Id. at 232; accord Kane v. Douglas, Elliman, Hollyday & Ives, 635 F.2d 141, 142 (2d Cir.1980) (per curiam) (Rule 6(a) applied to the filing of Title VII claim). Other circuits have also followed the reasoning of Lamb when the statute at issue was passed after the federal rule which provides the time computation. See, e.g., Wood-Ivey Sys. Corp. v. United States, 4 F.3d 961, 962-63 (Fed.Cir.1993) (construing the identical Claims Court Rule 6(a) to permit filing under the Contract Disputes Act of 1978, two days after the twelve month limitations period); United Mine Workers of Am. v. Dole, 870 F.2d 662, 665 (D.C.Cir.1989) (construing the virtually identical Fed.R.App.P. 26(a) and allowing the filing of a petition under the Mine Act two days after the 60-day limitations period); In re Gotham Provision Co., Inc., 669 F.2d 1000, 1014 (5th Cir.) (applying Fed.R.Civ.P. 6(a) to compute period of filing notice under the Packers and Stockyards Act), cert. denied, 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982). Instead of relying on this caselaw, the majority asserts that the “in custody” requirement of § 2255 is “jurisdictional” and therefore Rule 6(a), if applied herein, would impermissibly expand the jurisdiction of the federal courts. Although I agree with the majority that the “in custody” requirement is jurisdictional, I disagree that Rule 6(a) is therefore inapplicable. Rule 6(a) is an acknowledgment that the functioning of the courts is often interrupted by holidays, weekends and other events that make filing impossible. The Rule, grounded in notions" }, { "docid": "23067579", "title": "", "text": "S.Ct. 2666, 49 L.Ed.2d 614 (1976). Therefore, Congress had power to authorize suits against state employers by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Fitzpatrick v. Bitzer, 427. U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Unlike Title VII, Section 1981 contains no congressional waiver of the state’s eleventh amendment immunity. This indicates that Congress did not intend by the general language of the Civil Rights Act of 1871 to invoke its fourteenth amendment power. Quern v. Jordan, 440 U.S. at 342, 99 S.Ct. at 1146, 59 L.Ed.2d at 367 (1979); Edelman v. Jordan, 415 U.S. at 675-77, 94 S.Ct. at 1362, 39 L.Ed.2d at 679 (1974). Therefore, the district court erroneously denied Rusk State Hospital’s motion to dismiss the Section 1981 claim. III. A Title VII claim must be filed within ninety days of receipt of the right-to-sue notice. See 42 U.S.C. § 2000e-5(f). Action within this Title VII time period is not a prerequisite to a federal court’s jurisdiction. See Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 591 n.14 (5th Cir. 1981) (en banc) (case involving the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq.); Oaxaca v. Roscoe, 641 F.2d 386 (5th Cir. 1981). Compliance with the Title VII time period for filing a charge with the EEOC is a statutory requirement for presentation of the claim, and failure to do so admits a defense analogous to a statute of limitations. Oaxaca v. Roscoe, 641 F.2d at 390. After the right-to-sue letter is issued, the timeliness of the suit in federal court does not involve the court’s jurisdiction but whether the litigant has fulfilled the statutory conditions. Sessions’ Title VII court claim can be considered timely filed only if the amended complaint asserting it relates back to the date of filing the original complaint which, as we have pointed out, alleged solely a violation of Section 1981. In Caldwell v. Martin Marietta Corp., 632 F.2d 1184 (5th Cir. 1980), we held that a Title VII claim against a private employer asserted in" }, { "docid": "7326048", "title": "", "text": "plaintiff’s counsel had been dilatory in prosecuting the action and that the plaintiff herself must be disqualified from representing the class because of conflicts of interest; therefore, the plaintiff had failed to show that she would adequately represent the class. See Fed.R. Civ.P. 23(a)(4). I. Plaintiff’s Compliance Vel Non With the 90-Day Filing Limitation The first question presented by Flagship’s motion for summary judgment is whether a genuine issue exists for trial concerning the timeliness of the filing of Smith’s complaint in this court after receipt of her statutory notice of right to sue. A. The Law While compliance with the 90-day filing period is not a prerequisite to a federal court’s subject-matter jurisdiction under Title VII, such compliance is a statutory precondition to the maintenance of any action under Title VII. Sessions v. Rusk State Hospital, 648 F.2d 1066, 1070 (5th Cir.1981); see Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 592 n. 15 (5th Cir.1981) (en banc) (recent decisions of the Fifth Circuit indicate that the 90-day period is “more in the nature of a statute of limitations subject to equitable modification than a jurisdictional prerequisite”); see also, e.g., Law v. Hercules, Inc., 713 F.2d 691, 692-93 (11th Cir.1983) (claim barred where claimant filed suit 91 days after son signed certified mailing receipt for notice of right to sue, even though notice did not come to claimant’s attention until “one or two days later”). Dismissal of Title VII claims is proper where the plaintiff fails to meet his or her burden of proving that the complaint was timely filed in court. Cf. Crawford v. Western Electric Co., Inc., 614 F.2d 1300, 1306 (5th Cir.1980) (district court correctly dismissed Title VII claims where plaintiffs offered no proof that they had timely filed complaint with EEOC). B. The Evidence In support of her contention that she received no notice of right to sue before March 23, 1983, Smith submits a copy of a “Notice of Conciliation Conference” dated September 14, 1982, and mailed to her by the EEOC. The notice states that the conference was to be held on" }, { "docid": "5726097", "title": "", "text": "banc). Timely filing is not a prerequisite to federal jurisdiction. Permitting suit after the period has ended would not, therefore, work an extension of our jurisdiction. Fed.R.Civ.P. 6(a) provides that [i]n computing any period of time prescribed ... the last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. Rule 6(a) “does not provide a general rule of statutory construction which the courts are bound to apply to all time periods mentioned in any statute that may come before the courts.” 2 Moore’s Federal Practice § 6.06[2] (1981). Other' courts have, however, found that Rule 6(a)’s provision should apply to Section 2000e-5(f)(l), which prescribes a 90 day time limit for filing suits against private parties: [I]n the light of the purposes intended to be served by Title VII, it is a sound interpretation of congressional intent that the party plaintiff is to have a full span of ninety days in which to file his action, and that accordingly, when the ninetieth calendar day is Saturday, Sunday, or holiday, the period does not expire until the end of the next day which is none of these three. Pearson v. Furnco Constr. Co., 563 F.2d 815, 819 (7th Cir. 1977); accord, Kane v. Douglas, Ellman, Hollyday & Ives, 635 F.2d 141, 142 (2d Cir. 1980). The court’s reasoning is persuasive and equally applicable to suits under Section 2000e-16(c). We conclude that the intent of Congress in passing Section 2000e-16(e) was to adopt the provisions of Rule 6(a) allowing a party to file suit on the day following the weekend or holiday if a time period for filing ends on a weekend or holiday. Milam also contends that she should be allowed to bring before the court her complaints of discharge because of sex and physical handicap discrimination. She did not appeal to the EEOC the denial of that complaint, she argues, because the Postal Service misled her" }, { "docid": "23052198", "title": "", "text": "Cir.1981). Although this circuit has come close to deciding this issue a number of times, it has never been forced to definitively resolve it. See Earnhart v. Commonwealth of Puerto Rico, 691 F.2d 69, 72-73 & n. 1 (1st Cir.1982) (discussing whether rule of equitable modification of the ADEA filing period followed in other circuits should be applied to Title VII cases); Ciccone v. Textron, Inc., 616 F.2d 1216, 1218 n. 3, 1220 n. 7 (1st Cir.1980) (declining to decide issue of equitable modification under the ADEA); Daughtry v. King’s Department Stores, Inc., 608 F.2d 906, 909 (1st Cir.1979) (putting-off until another day the issue of equitable modification); Hadfield v. Mitre Corp., 562 F.2d 84, 87-88 (1st Cir.1977) (suggesting that equitable tolling may be permissible for the 60-day limitations period set out in § 633(b) of the ADEA). Because of the dearth of First Circuit cases on point, we find instructive the decisions of other circuits. Our sister circuits are in virtual unanimity in holding that the ADEA filing period is akin to a statute of limitations and is subject to equitable modification. See Dillman v. Combustion Engineering Corp., 784 F.2d 57, 59 (2d Cir.1986); McClinton v. Alabama By-Products Corp., 743 F.2d 1483, 1485 (11th Cir.1984); Vance v. Whirlpool Corp., 716 F.2d 1010, 1012 (4th Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1600, 80 L.Ed.2d 130 (1984); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 594-95 (5th Cir.1981) (en banc); Nielsen v. Western Electric Co., Inc., 603 F.2d 741, 743 (8th Cir.1979); Naton v. Bank of California, 649 F.2d 691, 695-96 (9th Cir.1981); Wright v. State of Tennessee, 628 F.2d 949, 952-53 (6th Cir.1980) (en banc); Bonham v. Dresser Industries, Inc., 569 F.2d 187, 193 (3rd Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978); Kephart v. Institute of Gas Technology, 581 F.2d 1287, 1288-89 (7th Cir.1978); and Dartt, 539 F.2d at 1259-60. These courts have based their holdings in part on the premise that: The ADEA is remedial and humanitarian legislation and should be liberally interpreted to effectuate the congressional purpose of ending" }, { "docid": "5485855", "title": "", "text": "civil nature,” and thus the Rules, including Rule 6(a), do not apply. The argument has been almost uniformly rejected in Title VII actions. In Pearson v. Furnco Constr. Co., 563 F.2d 815, 818-19 (7th Cir. 1977), for example, the 90th day after the EEOC Notice was Sunday, September 29. Plaintiff’s complaint was filed on Monday, September 30. The court stated that the spirit of Rule 6(a) governed, and held the filing timely: We think that in the light of the purposes intended to be served by Title VII, it is a sound interpretation of congressional intent that the party plaintiff is to have a full span of ninety days in which to file his action, and that accordingly, when the ninetieth calendar day is a Saturday, Sunday, or holiday, the period does not expire until the end of the next day which is none of these three. Accord, Bailey v. Boilermakers Local 667, 480 F.Supp. 274, 282 (N.D.W.Va.1979) (90th day Sunday; complaint filed on Monday held timely); Menn v. Amstar Corp., 476 F.Supp. 303, 306 (D.Md.1979) (90th day Labor Day; complaint filed next day held timely); Jordan v. Lewis Grocer Co., 467 F.Supp. 113, 115 (N.D.Miss.1979) (90th day Sunday; complaint filed Monday held timely); Burks v. Vann’s Baking Corp., 3 FEP Cases 620 (W.D.Tenn.1971) (under 30-day deadline applicable before 1972 amendment creating 90-day deadline) (30th day Sunday; complaint filed Monday held timely). Cf. Tavernaris v. Beaver Area School District, 454 F.Supp. 355, 357 (W.D.Pa.1978) (90th day Monday; complaint filed on Wednesday held timely because Title VII “should be liberally construed”). See Haire v. Calloway, 385 F.Supp. 309, 310 (E.D.Mo. 1974) (under 42 U.S.C. § 2000e-16) (30-day limit ends Saturday; complaint filed Monday held timely), vacated on other grounds, 537 F.2d 318 (8th Cir. 1976); contra, Smith v. Bailar, 22 FEP Cases 1378 (N.D.Ga. Feb. 15, 1980) (under § 2000e-16) (30th day Saturday; complaint filed on Monday held not timely). In view of the broad remedial purposes of Title VII, see Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972), we decline to extend" }, { "docid": "23074189", "title": "", "text": "misleads claimant about the nature of his Title VII rights). In this case, Espinoza has made no showing that he was misled by the court, the EEOC or the defendant or that he took any action within the ninety-day period to commence his lawsuit. Clearly, he is not entitled to equitable tolling. See Baldwin County Welcome Center, 104 S.Ct. at 1726 (“One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.”); Cruce v. Brazosport Independent School Dish, 703 F.2d 862, 864 (5th Cir.1983) (same); Hibbard v. Don Love, Inc., 584 F.Supp. 2, 3 (S.D.Tex.1984) (fact that plaintiff was moving during the ninety-day period does not justify tolling). For the reasons set forth above, we affirm. AFFIRMED. . At this point, a brief detour is in order to clarify the nature of 42 U.S.C. § 2000e-5(f)(l)’s ninety-day requirement and the procedural path for assessing whether it has been satisfied. The district court dismissed this action for want of jurisdiction. We note, however, that commencing an action within ninety days of receipt of a right-to-sue letter is not a jurisdictional prerequisite; rather, the ninety-day requirement is akin to a statute of limitations. See Sessions v. Rusk State Hospital, 648 F.2d 1066, 1069-70 (5th Cir.1981) (citing Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 591 n. 14 (5th Cir.1981) (en banc) (29 U.S.C. § 626(d)(1) requirement that ADEA plaintiff file with Secretary of Labor notice of intent to sue within 180 days of alleged discrimination is not jurisdictional)); see abo Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct. 1127, 1135, 71 L.Ed.2d 234 (1982) (42 U.S.C. § 2000e-5(e) requirement that employee file discrimination charge with EEOC within 180 days of alleged discrimination is not jurisdictional prerequisite to suit in the district court); Nilsen v. City of Moss Point, 701 F.2d 556, 563 (5th Cir.1983) (en banc) (\"we hold that the timely filing requirements of Title VII are to be treated as limitation periods for all purposes”). This distinction is important for at least two reasons. First, the ninety-day requirement, as a nonjurisdictional" }, { "docid": "14582482", "title": "", "text": "by 42 U.S.C. § 2000e-5(f)(1). Plaintiff received the letter on September 8, 1980, and filed suit in this Court on December 8, 1980, which he concedes is some ninety-one days later. Defendant argues that the failure to file within the statutory maximum limit of ninety days deprives this Court of jurisdiction over the matter. Plaintiff, however, points out that under Fed.R.Civ.P. 6(a), which governs the computation of time prescribed by “any applicable statute,” if the last day of a period falls on a Sunday, the period of time runs until the next day. December 7, 1980, was a Sunday, and the suit was filed the next day. This Court agrees with the Plaintiff that this procedure complied with the statute, as construed with Rule 6(a). Several courts have applied Rule 6(a) to similar Title VII situations. See, e.g., Pearson v. Furnco Construction Co., 563 F.2d 815, 818-19 (7th Cir. 1977); Jordan v. Lewis Grocer Co., 467 F.Supp. 113, 115 (N.D.Miss.1979). In so applying Rule 6(a), this Court rejects authority to the contrary, see, Milam v. U.S. Postal Service, 533 F.Supp. 28 (N.D.Ga.1981), as unpersuasive, for reason that, properly construed, there is no conflict between § 2000e-5(f)(1) and Rule 6(a), and both may be applied together. See also, Burnett v. Chickasaw Area Development Commission, 662 F.2d 1210, 1213 (6th Cir. 1981) (Federal Rules of Civil Procedure apply to Title VII cases). Since the complaint was timely filed, and the pleadings and affidavits raise genuine issues of material fact on the merits of the Plaintiff’s Title VII claims against the Teamsters, the motion for summary judgment by the Teamsters must be, and is, overruled. 4. Count IV: MOTIONS OVERRULED Both Defendants have moved for summary judgment with respect to Count IV. The fourth count of the amended complaint alleges that both Defendants violated 42 U.S.C. § 1981, in that Plaintiff was not treated similarly to other employees in his discharge and grievance, “on account of his race.” Defendants argue that a complaint under § 1981 must plead intentional discrimination on the basis of race, and that Count IV does not meet this" }, { "docid": "3800250", "title": "", "text": "(5th Cir.), cert. denied, 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982) (Rule 6(a) applies to federal statutes). In Pearson v. Furnco Construction Co., 563 F.2d 815 (7th Cir.1977), the Seventh Circuit held that Rule 6(a) did apply in computing the 90-day period prescribed by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(l). However, the court did not apply Rule 6(a) to federal statutes generally. Instead it stated: Although the procedural rule does not directly apply to a statute of limitations, courts have at times invoked the principle of the rule as a matter of interpretation____ We think that in light of the purposes intended to be served by Title VII, it is a sound interpretation of a congressional intent that the party plaintiff is to have a full span of ninety days in which to file his action, and that [Rule 6(a) should be applied]. Unlike Title VII, however, which is remedial in purpose and should therefore be liberally construed, see Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1086 (7th Cir.1984), cert. denied, 471 U.S. 1017, 105 S.Ct. 2023, 85 L.Ed.2d 304 (1985), the purpose of the Federal Tort Claims Act is to expand government liability and is a limited waiver of sovereign immunity. Baker v. F & F Investment Co., 489 F.2d 829, 835 (7th Cir.1973); Carr v. Veterans Administration, 522 F.2d 1355, 1357 (5th Cir.1975). As such it must be strictly construed. Carr at 1357. Thus, while the Seventh Circuit applied Rule 6(a) in Pearson, it did so “in light of the purposes intended to be served by Title VII,” and could reach the opposite result when considering the question as applied to the Federal Tort Claims Act. Therefore Stewart and Hughes require that the last day this complaint could have been timely filed was October 29, 1985. Therefore plaintiffs complaint was late, even if filed on October 30. IT IS THEREFORE ORDERED that on reconsideration the court adheres to its previous decision granting defendant’s motion to dismiss. . Because November 24, 1974 was a Sunday, the court further" }, { "docid": "13913140", "title": "", "text": "6(a) argument, and have reached opposite conclusions. In Jordan v. Lewis Grocer Co., 467 F.Supp. 113 (N.D.Miss.1979), the Court held that Rule 6(a) could be applied to extend the period for filing a discrimination complaint to include the next Monday. In Smith v. Bailar, 22 FEP Cases 1378 (N.D.Ga.1980), the Court refused to include the following Monday in the 30 day period, citing Eastland. This Court finds the reasoning of Smith to be persuasive. In Smith, Judge Edenfield reasoned that if 42 U.S.C. § 2000e-16(c) is a jurisdictional statute, as the Fifth Circuit held in Eastland, then its 30 day limitation cannot be extended by Rule 6(a). Indeed, Fed.R. Civ.P. 82 provides that the Federal Rules of Civil Procedure “shall not be construed to extend or limit the jurisdiction of the United States district courts.” Furthermore, the Fifth Circuit has held that the analogous 90 day limitations period for private sector employees cannot be extended by the court because the statute is jurisdictional in nature. Prophet v. Armco Steel, Inc., 575 F.2d 579 (5th Cir. 1978). The Court therefore DISMISSES the Complaint for lack of subject matter jurisdiction. . The relevant portion of each letter is reproduced below. The letter regarding the termination complaint provided: May 30, 1980 Ms. Catherine H. Johnson 3984 Gretna Green Drive Decatur, GA 30034 Re: Case No. 3-1-0398-9 Atlanta, GA Dear Ms. Johnson: Reference is made to your complaint of discrimination, filed with the EEO Office, Southern Region on January 11, 1979. The letter regarding the retaliation complaint provided: May 30, 1980 Ms. Catherine H. Johnson 3984 Gretna Green Drive Decatur, GA 30035 Re: Case No. 3-2-1300-9 Atlanta, GA Dear Ms. Johnson: Reference is made to your complaint of discrimination, filed with the EEO Office, Southern Region on September 22, 1979. The letters were otherwise identical. . The full text of this letter provided: June 11, 1980 Office of Appeals and Review Equal Employment Opportunity Commission Washington, D. C. 20506 RE: Catherine H. Johnson Case No. 3-2-1300-9 Atlanta, Georgia Dear Sirs: Please accept this letter as formal notice of appeal of the above-referenced case. If" }, { "docid": "23116654", "title": "", "text": "every packer keeps books and records from which the amount of the inventories, receivables and proceeds and the amount owed to each unpaid cash seller of the livestock to the packer can be determined by an audit of those books and records. Upon bankruptcy, for example, an audit would reveal the amount of the commingled inventories, accounts receivable and proceeds, the amount owed to the unpaid cash sellers of livestock to the packer and thus the extent of the application of the trust. The audit would reveal the amount which must be paid to the unpaid cash sellers before the commingled inventories, accounts receivable, and proceeds are freed from the trust. Accordingly, we foresee no problem in the administration of this program as contemplated by the Committee. 122 Cong.Rec. 18825 (June 17, 1976) (emphasis added). . See 9 C.F.R. § 203.15 (1981) for the regulations which correspond to the notice provision of the statute. . The Secretary cites two Miller Act cases, United States v. H. I. Lewis Construction Co., 375 F.2d 194, 199-201 (2d Cir. 1967) and United States for the Use of Greenwald-Supon v. Gramercy Contractors, Inc., 433 F.Supp. 156 (S.D.N.Y.1977), for the proposition that remedial statutes should be liberally construed, in order to effectuate congressional intent, to allow timely actual notice to satisfy statutory notice requirements. While we agree that this statute is remedial in nature, we would be forced to ignore clearly stated congressional intent in order to accept the actual notice standard advanced by the Secretary. This we decline to do. . Although other courts have applied the method of Rule 6(a) to time limits imposed by remedial statutes such as Title VII, see, e.g., Pearson v. Furnco Construction Co., 563 F.2d 815, 818-19 (7th Cir. 1977); Kane v. Douglas, Elliman, Hollyday & Ives, 635 F.2d 141 (2d Cir. 1980), the district court in Smith v. Bailor, 22 FEP Cases 1378 (N.D.Ga.1980), declined to apply Rule 6(a) to the 30-day period for filing suit against the federal government under 42 U.S.C. § 2000e-16. We recognize that the Smith case is inconsistent with the rule set" }, { "docid": "23116655", "title": "", "text": "Cir. 1967) and United States for the Use of Greenwald-Supon v. Gramercy Contractors, Inc., 433 F.Supp. 156 (S.D.N.Y.1977), for the proposition that remedial statutes should be liberally construed, in order to effectuate congressional intent, to allow timely actual notice to satisfy statutory notice requirements. While we agree that this statute is remedial in nature, we would be forced to ignore clearly stated congressional intent in order to accept the actual notice standard advanced by the Secretary. This we decline to do. . Although other courts have applied the method of Rule 6(a) to time limits imposed by remedial statutes such as Title VII, see, e.g., Pearson v. Furnco Construction Co., 563 F.2d 815, 818-19 (7th Cir. 1977); Kane v. Douglas, Elliman, Hollyday & Ives, 635 F.2d 141 (2d Cir. 1980), the district court in Smith v. Bailor, 22 FEP Cases 1378 (N.D.Ga.1980), declined to apply Rule 6(a) to the 30-day period for filing suit against the federal government under 42 U.S.C. § 2000e-16. We recognize that the Smith case is inconsistent with the rule set forth above. However, the underlying rationale of Smith, that the Title VII time period involved was jurisdictional (and, therefore, in the view of the Smith court, not subject to extension under Rule 6(a)) is questionable in view of the en banc opinion of this court in Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir. 1981). . There is no doubt that whatever acts are required to make a filing under § 206, Rogers filed notice no later than March 19, 1976, and Perkins filed no later than March 23, 1976. Since there are no findings of fact on the issues of when notice to the Secretary was sent or received in Perkins’ case, it is not established that one or both of these events did not occur by March 19. We believe that it is inappropriate to reach the issue of whether transmittal of written notice to the Secretary by mail or otherwise would constitute filing until these factual issues are answered. . The court in Hedrick v. S. Bonaccurso & Sons," }, { "docid": "5726096", "title": "", "text": "the complaint for lack of subject matter jurisdiction. It stated that 42 U.S.C.A. § 2000e-16(c) was a jurisdictional statute requiring a plaintiff to file suit within 30 days of receipt of an EEOC notification letter. Since the statute was jurisdictional, the court ruled that it had no power to extend the time limit even if the limitations period fell on a Sunday. We reverse. The district court relied on the former Fifth Circuit holding in Eastdale v. Tennessee Valley Auth., 553 F.2d 364, 368-69 (5th Cir.), cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977), in ruling that Section 2000e-16(c) was jurisdictional. That holding no longer is good law. See Zipes v. Independent Fed’n of Flight Attendants, - U.S. -, ---, 102 S.Ct. 1127, 1129-35, 71 L.Ed.2d 234 (1982); Sessions v. Rusk State Hosp., 648 F.2d 1066, 1069 (5th Cir. 1981) (regarding 42 U.S.C.A. § 2000e-5(f)(1), analogous statute of Title VII for suits against private parties); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 587-95, 591 n.15 (5th Cir. 1981) (en banc). Timely filing is not a prerequisite to federal jurisdiction. Permitting suit after the period has ended would not, therefore, work an extension of our jurisdiction. Fed.R.Civ.P. 6(a) provides that [i]n computing any period of time prescribed ... the last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. Rule 6(a) “does not provide a general rule of statutory construction which the courts are bound to apply to all time periods mentioned in any statute that may come before the courts.” 2 Moore’s Federal Practice § 6.06[2] (1981). Other' courts have, however, found that Rule 6(a)’s provision should apply to Section 2000e-5(f)(l), which prescribes a 90 day time limit for filing suits against private parties: [I]n the light of the purposes intended to be served by Title VII, it is a sound interpretation of congressional intent that the party plaintiff" }, { "docid": "7031614", "title": "", "text": "to the project. . Pepper Burns brought suit against Artco, Pyramid and the bond sureties. Neither Pyramid nor the sureties answered the complaint and default judgment was entered against them. Actions against Pyramid were stayed when it filed a Chapter 7 bankruptcy proceeding. . Although other courts have expressed views on this particular question, we find no guidance in their conflicting statements. Only two courts have expressly ruled on the issue. The district court in United States ex rel. Crowe v. Continental Casualty Co., 245 F.Supp. 871, 873 (E.D.La.1965), specifically held that notice mailed on the ninetieth day was sufficient for purposes of the Miller Act. Subsequently, the court for the Eastern District of New York, relying on the Crowe decision, reached the same conclusion. United States ex rel. Lincoln Elec. Prod. Co. v. Greene Elec. Serv., 252 F.Supp. 324, 327 (E.D.N.Y.1966) (mailing notice within the ninety day time period was sufficient), aff'd, 379 F.2d 207 (2d Cir.1967). We do not find the reasoning in those opinions persuasive. The Second Circuit in dicta expressed an opposing view in an opinion issued shortly before it affirmed Lincoln Electric. See United States ex rel. Gen. Elec. Co. v. H.I. Lewis Constr. Co., 375 F.2d 194, 200 (2d Cir.1967) (\"notice, however conveyed, must reach the party ... within the statutory time for its receipt”). Similarly, other district courts, in dicta, have indicated that receipt is necessary to satisfy the Miller Act requirement. See, e.g., United States ex rel. Greenwald-Supon, Inc. v. Gramercy Contractors, Inc., 433 F.Supp. 156, 163 (S.D.N.Y.1977); United States ex rel. Excavation Construction, Inc. v. Glenn-Stewart-Pinckney Builders and Developers, Inc., 388 F.Supp. 289, 296 (D.Del.1975). . The last sentence of § 270b(a) provides: Such notice shall be served by mailing the same by registered mail, postage prepaid, in an envelop addressed to the contractor at any place he maintains an office or conducts his business, or his residence...." }, { "docid": "3800249", "title": "", "text": "494 n. 4 (8th Cir.1985) (“it may even be argued that [a rule in which the last day would be October 30] may be too generous by one day, on a theory that the Federal Rules of Civil Procedure are not applicable to statutory time periods”). If Rule 6(a) were applied, for example in Hughes, the day of mailing would be excluded, making November 15 the first day of the limitations period. It would not be possible for the last day to then be May 13, requiring, as it would, reaching back two calendar days from the anniversary date of May 15. The question then becomes whether it is appropriate not to apply Rule 6(a) to compute this period. Courts have split over whether Rule 6(a) should be applied to statutory limitations periods. Compare, e.g., Rust v. Quality Car Corral, Inc., 614 F.2d 1118 (6th Cir.1980) (Rule 6(a) does not apply to the period prescribed by the Truth in Lending Act, 15 U.S.C. § 1640(e)), with In re Gotham Provision Co., 669 F.2d 1000, 1014 (5th Cir.), cert. denied, 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982) (Rule 6(a) applies to federal statutes). In Pearson v. Furnco Construction Co., 563 F.2d 815 (7th Cir.1977), the Seventh Circuit held that Rule 6(a) did apply in computing the 90-day period prescribed by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(l). However, the court did not apply Rule 6(a) to federal statutes generally. Instead it stated: Although the procedural rule does not directly apply to a statute of limitations, courts have at times invoked the principle of the rule as a matter of interpretation____ We think that in light of the purposes intended to be served by Title VII, it is a sound interpretation of a congressional intent that the party plaintiff is to have a full span of ninety days in which to file his action, and that [Rule 6(a) should be applied]. Unlike Title VII, however, which is remedial in purpose and should therefore be liberally construed, see Ulane v. Eastern Airlines, Inc., 742" }, { "docid": "22127060", "title": "", "text": "Congress did not intend Title VII’s procedural requirements to be jurisdictional prerequisites, which if not satisfied deprive federal courts of subject matter jurisdiction. A court’s function in interpreting a statute “is to construe the language so as to give effect to the intent of Congress,” and the most persuasive evidence of Congressional intent is the wording of the statute. United States v. American Trucking Ass’n, 310 U.S. 534, 542, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1939). See Sierra Club v. Train, 557 F.2d 485 (5th Cir. 1977). 42 U.S.C. § 2000e-5(f)(3), the statutory provision conferring jurisdiction over Title VII suits to federal district courts, provides that “[e]ach United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions under this subchapter.” This provision unconditionally confers jurisdiction over claims arising under Title VII to federal district courts. Nothing in the express language of section 2000e-5(f)(3) suggests that the subject matter jurisdiction of the federal courts is conditioned upon the fulfillment of other procedural requirements for pursuing a Title VII claim. See Zipes v. Trans World Airlines, Inc.,-U.S.-,-, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir. 1981) (en banc). Nor do any of the provisions that detail the prerequisites to filing a Title VII action contain language qualifying section 2000e-5(f)(3). See, eg., note 7 supra. We cannot conclude that Congress’ omission of such qualifying language was inadvertent. The preconditions to filing a Title VII action and the jurisdictional provision are found in the same subsection of Title VII, 42 U.S.C. § 2000e-5, and if Congress had wanted to limit the jurisdiction of federal district courts over Title VII claims brought under section 2000e-5(f)(3), it certainly knew how to do it. In conferring jurisdiction on federal district courts over “pattern or practice” suits instituted by the Attorney General under Title VII, Congress specifically limited federal court jurisdiction to “proceedings instituted pursuant to this section. . .. ” 42 U.S.C. § 2000e-6(b). But Congress chose not to limit" }, { "docid": "5485856", "title": "", "text": "(D.Md.1979) (90th day Labor Day; complaint filed next day held timely); Jordan v. Lewis Grocer Co., 467 F.Supp. 113, 115 (N.D.Miss.1979) (90th day Sunday; complaint filed Monday held timely); Burks v. Vann’s Baking Corp., 3 FEP Cases 620 (W.D.Tenn.1971) (under 30-day deadline applicable before 1972 amendment creating 90-day deadline) (30th day Sunday; complaint filed Monday held timely). Cf. Tavernaris v. Beaver Area School District, 454 F.Supp. 355, 357 (W.D.Pa.1978) (90th day Monday; complaint filed on Wednesday held timely because Title VII “should be liberally construed”). See Haire v. Calloway, 385 F.Supp. 309, 310 (E.D.Mo. 1974) (under 42 U.S.C. § 2000e-16) (30-day limit ends Saturday; complaint filed Monday held timely), vacated on other grounds, 537 F.2d 318 (8th Cir. 1976); contra, Smith v. Bailar, 22 FEP Cases 1378 (N.D.Ga. Feb. 15, 1980) (under § 2000e-16) (30th day Saturday; complaint filed on Monday held not timely). In view of the broad remedial purposes of Title VII, see Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972), we decline to extend the dictum of Joint Council Dining Car Employees, Local 370 v. Delaware, L. & W. R. Co., 157 F.2d 417, 420 (2d Cir. 1946), to bar this action. Unlike the statute at issue in Dining Car, Title VII was passed by a Congress with Rule 6(a) firmly in mind. See Simon v. CIR, 176 F.2d 230, 232 (2d Cir. 1949); Rutledge v. Sinclair Refining Co., 13 F.R.D. 477, 478 (S.D.N.Y.1953). The judgment is reversed, and the case is remanded for proceedings consistent with this opinion." }, { "docid": "23074190", "title": "", "text": "receipt of a right-to-sue letter is not a jurisdictional prerequisite; rather, the ninety-day requirement is akin to a statute of limitations. See Sessions v. Rusk State Hospital, 648 F.2d 1066, 1069-70 (5th Cir.1981) (citing Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 591 n. 14 (5th Cir.1981) (en banc) (29 U.S.C. § 626(d)(1) requirement that ADEA plaintiff file with Secretary of Labor notice of intent to sue within 180 days of alleged discrimination is not jurisdictional)); see abo Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct. 1127, 1135, 71 L.Ed.2d 234 (1982) (42 U.S.C. § 2000e-5(e) requirement that employee file discrimination charge with EEOC within 180 days of alleged discrimination is not jurisdictional prerequisite to suit in the district court); Nilsen v. City of Moss Point, 701 F.2d 556, 563 (5th Cir.1983) (en banc) (\"we hold that the timely filing requirements of Title VII are to be treated as limitation periods for all purposes”). This distinction is important for at least two reasons. First, the ninety-day requirement, as a nonjurisdictional statutory precondition to suit, may be subject to tolling and waiver. See Baldwin County Welcome Center v. Brown, — U.S.—, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam). Second, the issue of subject matter jurisdiction may be resolved by the district court in a manner fundamentally different from the defense of limitations. On a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a district court may itself resolve disputed fact questions. Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). On a Rule 12(b)(6) motion to dismiss for failure to state a claim, on the other hand, the district court must accept the truth of plaintiffs allegations or rely upon only those matters outside of the pleadings with respect to which there is no genuine issue of fact. Id.; see abo Fed.R.Civ.P. 12(b)(6), 56. Thus, the district court clearly erred by phrasing its dismissal of this case in terms of subject matter jurisdiction. This error is of no significance" }, { "docid": "23116656", "title": "", "text": "forth above. However, the underlying rationale of Smith, that the Title VII time period involved was jurisdictional (and, therefore, in the view of the Smith court, not subject to extension under Rule 6(a)) is questionable in view of the en banc opinion of this court in Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir. 1981). . There is no doubt that whatever acts are required to make a filing under § 206, Rogers filed notice no later than March 19, 1976, and Perkins filed no later than March 23, 1976. Since there are no findings of fact on the issues of when notice to the Secretary was sent or received in Perkins’ case, it is not established that one or both of these events did not occur by March 19. We believe that it is inappropriate to reach the issue of whether transmittal of written notice to the Secretary by mail or otherwise would constitute filing until these factual issues are answered. . The court in Hedrick v. S. Bonaccurso & Sons, Inc., 466 F.Supp. at 1032, did not address this issue, but assumed that filing occurred on the date stamped." } ]

[ { "docid": "2019296", "title": "", "text": "title or ownership of the commercial paper and there was no purchase or sale of the commercial paper as required for protection under the section 546(e) safe harbor. Rather, Enron argues that it merely paid off a debt and the Investors received payment on the underlying debt obligation. The Second Circuit has recognized that “a maker’s paying a note prior to maturity in accordance with its terms would not be regarded as a ‘purchase.’ ” SEC v. Sterling Precision Corp., 393 F.2d 214, 217 (2d Cir.1968). Further, the transfer of ownership of an asset is required for a purchase and sale. Id. (noting that “purchase” means “the acquisition of title to, or property in, anything for a price”). In Sterling Precision, the court concluded that when an entity discharges a bond or debenture, it does not acquire title to it. Id. Rather, “[pjayment and discharge of a bond is neither sale nor exchange within the commonly accepted meaning of the words.” Id. (quoting, Fairbanks v. United States, 306 U.S. 436, 437, 59 S.Ct. 607, 608, 83 L.Ed. 855 (1939)). The safe harbor is not intended to protect an investor from the credit risk inherent in the instrument. Rather, it is to protect the investor from risks incidental to the flow of payments within the system set up to channel payments and transfer the instrument. As such, the transfer of “ownership” of a security is an integral element in the securities settlement process. Here, Enron redeemed its commercial paper and paid off the underlying debt. The commercial paper was transferred to the Chase IPA account and immediately extinguished. Enron did not acquire title or ownership of the commercial paper. Rather, the commercial paper was immediately withdrawn from the DTC system. Furthermore, the payments made to the Investors were not based upon the prevailing market rate of the commercial paper. Rather, the Investors received the payment of their principal and interest up until the date of payment, based upon the economic terms of the commercial paper. Thus, the payments were in substantial compliance with the economic terms of the commercial paper, in" } ]

[ { "docid": "17366048", "title": "", "text": "commercial paper noteholders, Enron II, 407 B.R. at 31 — or some other factor. This reading of the statute would result in commercial uncertainty and unpredictability at odds with the safe harbor’s purpose and in an area of law where certainty and predictability are at a premium. Accordingly, we hold that the phrase “commonly used in the securities industry” limits only the phrase immediately preceding it; it does not limit the other transactions that § 741(8) defines as settlement payments. III. Redemption of Debt Securities Enron next argues that the redemption payments are not settlement payments because they involved the retirement of debt, not the acquisition of title to the commercial paper. We find no basis in the Bankruptcy Code or the relevant case-law to interpret § 741(8) as excluding the redemption of debt securities. Because Enron’s redemption payments completed a transaction in securities, we hold that they are settlement payments within the meaning of § 741(8). The bankruptcy court agreed with Enron’s position, relying in large part on our decision in SEC v. Sterling Precision Corp., 393 F.2d 214 (2d Cir.1968). See Enron II, 407 B.R. at 37-40. In Sterling Precision Corp., we held that an issuer’s redemption of bonds and preferred stock was not a “purchase” within the meaning of the Investment Company Act of 1940. 393 F.2d at 217. We based this conclusion, in part, on the fact that the issuer “did not acquire title to its Debentures or Preferred Stock; it discharged them.” 393 F.2d at 216-18. Drawing on this conclusion, the bankruptcy court held that Enron’s redemption payments do not constitute settlement payments under § 741(8) because Enron did not acquire title to the commercial paper it redeemed. Enron II, 407 B.R. at 38-40. Alfa and ING argue that Sterling Precision Corp. is not relevant to this case because it interpreted the Investment Company Act, not the Bankruptcy Code. Setting aside this argument, reliance on Sterling Precision Corp. ’s interpretation of the term “purchase” still makes sense only if we read a purchase or sale requirement into § 741(8). For the following reasons, we decline" }, { "docid": "17366037", "title": "", "text": "motions to dismiss. Following discovery, Alfa and ING, relying on § 546(e)’s safe harbor, moved for summary judgment. The bankruptcy court denied the motions. In re Enron Creditors Recovery Corp., 407 B.R. 17, 45 (Bankr.S.D.N.Y.2009) (“Enron II”). Concluding that “the transfer of ‘ownership’ of a security is an integral element in the securities settlement process,” it held that “settlement payments” include only payments made to buy or sell securities and not payments made to retire debt. Id. 37-41. The bankruptcy court relied on our decision in SEC v. Sterling Precision Corp., 393 F.2d 214 (2d Cir.1968), in which we held .that “a maker’s paying a note prior to maturity in accordance with its terms would not be regarded as a ‘purchase’ ” under the Investment Company Act of 1940. Enron II, 407 B.R. at 38 (quoting Sterling Precision, 393 F.2d at 217). The bankruptcy court concluded that Alfa and ING had not demonstrated that Enron’s payments were settlement payments as defined in § 741(8), because they had failed to establish that the payments were made to acquire title to the commercial paper rather than to retire debt. Id. at 37-41. At several points in its opinion, the bankruptcy court, to buttress its denial of summary judgment, emphasized facts (most of which are disputed) regarding the allegedly unusual nature of Enron’s redemption. These include the above-market price Enron paid, the alleged insistence of the broker-dealers to act as intermediaries instead of principals, and the supposed rarity of commercial paper prepayments in general. See, e.g., id. at 37-38. Alfa and ING sought, and were granted by the district court, interlocutory review of the bankruptcy court’s decision denying summary judgment. See In re Enron Creditors Recovery Corp., No. 01-16034, 2009 WL 3349471 (S.D.N.Y. Oct.16, 2009) {“Enron III ”). The district court limited the scope of review to the question whether the § 546(e) safe harbor applies to an issuer’s redemption of commercial paper prior to maturity, effected through the customary mechanism of transacting in commercial paper through the Depository Trust Company, without regard to extrinsic facts, such as the motives and circumstances of" }, { "docid": "17366057", "title": "", "text": "proposed exclusions from the definition of settlement payment and the safe harbor. The payments at issue were made to redeem commercial paper, which the Bankruptcy Code defines as a security. 11 U.S.C. § 101(49)(A)(i). They thus constitute the “transfer of cash ... made to complete [a] securities transaction” and are settlement payments within the meaning of § 741(8). See Contemporary Indus. Coyp., 564 F.3d at 985 (quoting In re Resorts Int’l, Inc., 181 F.3d at 515 (3rd Cir. 1999)). Because we reach this conclusion by looking to the statute’s plain language, we decline to address Enron’s arguments regarding legislative history, which, in any event, would not lead to a different result. See Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (“It is well established that when the statute’s language is plain, the sole function of the courts-at least where the disposition required by the text is not absurd-is to enforce it according to its terms.” (internal quotation marks omitted)). CONCLUSION For the foregoing reasons, we AFFIRM the district court’s decision reversing the decision of the Bankruptcy Court and directing entry of summary judgment in favor of Alfa and ING. . This opinion will refer to Enron Corp. and the reorganized entity, Enron Creditors Recovery Corp., collectively as \"Enron.” . Whether the reacquisition of commercial paper at issue in this appeal is properly char acterized as a redemption or a repurchase remains an open issue. See Enron II, 407 B.R. at 45. Because the district court addressed on appeal only whether the safe harbor protects an issuer's premature redemption of commercial paper, we do not have occasion to address the distinction between a premature redemption and an issuer's repurchase of commercial paper. . The dissent characterizes these decisions as \"standing] for the proposition that, if Section 546(e) applies to a particular 1ype of transaction-namely, purchases of equity securities-an individual transaction does not lose safe-harbor protection simply because it does not involve a central counterparty.” Dissent at 344. We have difficulty understanding the import of this characterization. We rely on these decisions as support for" }, { "docid": "13714001", "title": "", "text": "safe harbor as protecting the types of transactions at issue here.” Id. at 41 (emphasis added). Thus, the fact that the early redemptions were unusual was— at a minimum — important to the bankruptcy court’s reasoning. Second, while Judge Gonzalez did indeed conclude that “repayment and retirement” of “commercial paper debt” was not a “settlement payment” because “no securities transaction had occurred,” (Appellee’s Br. at 5 (citation omitted)), he actually went further, holding that only a securities transaction involving a “transfer of ownership” could be followed by a settlement payment that qualified for the section 546(e) safe harbor. Enron II, 407 B.R. at 39 (internal quotation marks omitted). Judge Gonzalez concluded that “the transfer of ‘ownership’ of a security is an integral element in the securities settlement process.” Id. He found that, in redeeming its notes, Enron never “acquire[d] title or ownership of the commercial paper” — a conclusion that, based on the papers submitted to this court, appears to be hotly disputed as a matter of fact. Id. (discussing ownership of the notes). Combined with the fact that the “payments made to the [creditors] were not based upon the prevailing market rate of the commercial paper,” Judge Gonzalez concluded that the redemptions were not “settlement payments” within the ambit of section 546(e)’s safe harbor. Id. He then set the matter for trial on the issue of whether JP Morgan had been acting as Enron’s agent during the Redemptions. This Court agreed to hear an appeal from Judge Gonzalez’s decision on an interlocutory basis. DISCUSSION I. Legislative History of the Safe Harbor Section 546 was first enacted in 1978 in response to a decision from a court in this District holding that the Bankruptcy Code did not prohibit a trustee from recovering a margin payment made to a commodities clearinghouse. See S. Rep. 95-989, at 106 (1978), as reprinted in 1978 U.S.C.C.A.N. 5787, 5892 (citing Seligson v. New York Produce Exchange, 394 F.Supp. 125 (S.D.N.Y.1975)). Then-codified as section 764(c), the safe harbor applied exclusively to margin payments from commodities clearing organizations and thus only protected transfers in “the ordinary course" }, { "docid": "13713992", "title": "", "text": "Section 741(8) of the Bankruptcy Code, to which Section 546(e) specifically refers, defines the term “settlement payment” tautologically, as “a preliminary settlement payment, a partial settlement payment, an interim settlement payment, a settlement payment on account, a final settlement payment, or any other similar payment commonly used in the securities trade.” Id. § 741(8). Abbreviated Statement of Facts In view of the limitation imposed by the Court on this appeal, the following facts (all of which are taken from Judge Gonzalez’s opinion; none of which represents an independent finding by this Court) should be kept in mind. Enron Corporation and its affiliates (“Enron”) filed petitions under Chapter 11 of the United States Code on December 2, 2001. Enron Creditors Recovery Corp. v. J.P. Morgan Sec., Inc., 407 B.R. 17, 21 (Bankr.S.D.N.Y.2009), Between October 26, 2001, and November 6, 2001, and thus within ninety days of that filing, Enron paid out more than $1.1 billion to retire certain of its unsecured and uncertificated commercial paper (or notes) prior to its stated maturity date (hereinafter “the Redemption”) — in some cases, only days prior to maturity. Id. The paper was redeemed at the accrued par value, calculated as the price originally paid plus accrued interest; this was well in excess of the then — market price of the notes. Id. at 22 n. 4. Further, the paper was redeemed prior to maturity, even though the Offering Memorandum for the commercial paper gave Enron no legal right to compel the holders to surrender their notes and explicitly provided that the notes were “not redeemable or subject to voluntary prepayment by [Enron] prior to maturity.” Id. at 22. Three broker-dealers, JP Morgan, Goldman Sachs (“Goldman”) and Lehman Brothers Commercial Paper, Inc. (“Lehman”), participated in some fashion in the Redemption. See id. & n. 3. Whether they were or were not acting as agents for Enron has been identified by Judge Gonzalez as a disputed issue of fact, see id. at 26-28, but it appears undisputed that the noteholders (including Alfa and ING, whose immediate contraparty was JP Morgan) transferred the commercial paper they hold" }, { "docid": "17366049", "title": "", "text": "Precision Corp., 393 F.2d 214 (2d Cir.1968). See Enron II, 407 B.R. at 37-40. In Sterling Precision Corp., we held that an issuer’s redemption of bonds and preferred stock was not a “purchase” within the meaning of the Investment Company Act of 1940. 393 F.2d at 217. We based this conclusion, in part, on the fact that the issuer “did not acquire title to its Debentures or Preferred Stock; it discharged them.” 393 F.2d at 216-18. Drawing on this conclusion, the bankruptcy court held that Enron’s redemption payments do not constitute settlement payments under § 741(8) because Enron did not acquire title to the commercial paper it redeemed. Enron II, 407 B.R. at 38-40. Alfa and ING argue that Sterling Precision Corp. is not relevant to this case because it interpreted the Investment Company Act, not the Bankruptcy Code. Setting aside this argument, reliance on Sterling Precision Corp. ’s interpretation of the term “purchase” still makes sense only if we read a purchase or sale requirement into § 741(8). For the following reasons, we decline to do so. Nothing in the text of § 741(8) or in any other provision of the Bankruptcy Code supports a purchase or sale requirement. Enron argues that a “settlement payment” must involve a transaction in securities, which, in turn, must involve a purchase or sale. While we, like our sister circuits, agree that in the context of the securities industry a “ ‘settlement’ refers to ‘the completion of a securities transaction,’ ” Con temporary Indus. Corp., 564 F.3d at 985 (quoting Kaiser Steel Corp. v. Charles Schwab & Co., 913 F.2d 846, 849 (10th Cir.1990)), we find little support for the contention that a securities transaction necessarily involves a purchase or sale. Several of the industry definitions of “settlement payment” on which other courts of appeals have relied define the term as an exchange of money or securities that completes a securities transaction; these definitions make no mention of a requirement that title to the securities changes hands. See, e.g., Kaiser Steel Corp., 913 F.2d at 849 (citing, inter alia, D. Brownstone & I." }, { "docid": "13713989", "title": "", "text": "McMAHON, District Judge. INTRODUCTION Before the Court is the appeal of the defendants in two adversary proceedings from an order of the Bankruptcy Court (Gonzalez, J.) denying their motions for summary judgment. See Enron Creditors Recovery Corp. v. J.P. Morgan Sec., Inc. (In re Enron Creditors Recovery Corp.), 407 B.R. 17 (Bankr.S.D.N.Y.2009). This Court granted the motion of the defendants (Alfa and ING) for permission to appeal on a limited question. See Alfa, S.A.B. de C.V. v. Enron Creditors Recovery Corp. (In re Enron Creditors Recovery Corp.), Nos. M-47 & M-47(a), 2009 WL 3349471 (S.D.N.Y. Oct. 16, 2009). The instant appeal is limited to a single question — whether the § 546(e) “safe harbor,” which bars avoidance of transfers that constitute “settlement payments” made in connection with transactions in securities, extends to transactions in which commercial paper is redeemed by the issuer prior to maturity, using the customary mechanism of the Depository Trust Company (the “DTC”) for trading in commercial paper (the “Redemption”), without regard to extrinsic facts about the nature of the Redemption, the motive behind the Redemption, or the circumstances under which the payments were made. Defen dants, supported by the Securities and Exchange Commission (the “SEC”), take the position that the prepayment (redemption) of debt evidenced by commercial paper (which no one seriously disputes is a “security” as that term is used in the Bankruptcy Code), using the mechanism of the DTC, is a “transaction in securities.” They further argue that every payment made to close out such a transaction qualifies as a “settlement payment” as long as it is effected by a broker or financial institution, without regard to whether the underlying transaction was out of the ordinary from a commercial point of view. Enron takes the opposite position: that the prepayment of debt is not a “transaction in securities” because there was no “purchase or sale” of securities. For that reason, Enron argues, the payment used to effect the redemption and retirement of the debt securities does not qualify as a “settlement payment,” no matter the role of the DTC or any broker or financial" }, { "docid": "17366030", "title": "", "text": "JOHN M. WALKER, JR., Circuit Judge: This appeal raises an issue of first impression in the courts of appeals: whether 11 U.S.C. § 546(e), which shields “settlement payments” from avoidance actions in bankruptcy, extends to an issuer’s payments to redeem its commercial paper pri- or to maturity. Enron Creditors Recovery Corp. (“Enron”) seeks to avoid and recover payments Enron made to redeem its commercial paper prior to maturity from Appellees Alfa, S.A.B. de C.V. (“Alfa”), ING VP Balanced Portfolio, Inc., and ING VP Bond Portfolio, Inc. (collectively, “ING”), whose notes were redeemed by Enron. Alfa and ING argue that § 546(e) protects these payments from avoidance. The Bankruptcy Court for the Southern District of New York (Arthur J. Gonzalez, Bankruptcy Judge) concluded that § 546(e)’s safe harbor does not protect Enron’s payments from avoidance because they were made to retire debt, not to purchase securities, and because they were extraordinary. The District Court for the Southern District of New York (Colleen McMahon, Judge) held that Enron’s payments do fall within the safe harbor, reversed the Bankruptcy Court’s decision, and remanded with instructions to enter summary judgment in favor of Alfa and ING. On appeal, Enron challenges the district court’s conclusion that the safe harbor protects Enron’s redemption payments whether or not they were made to retire debt or were unusual. Because we agree with the district court that Enron’s proposed exclusions from the reach of § 546(e) have no basis in the Bankruptcy Code, we AFFIRM its decision and order. BACKGROUND After a series of events in the latter half of 2001, including the resignation of its CEO, Jeffery Skilling, its announcement of $600 million in third-quarter losses, the commencement of an SEC investigation into its practices, and the correction of four years’ worth of financial statements, Enron, a Houston-based energy company, collapsed. See, e.g., David S. Hilzenrath, Early Warnings of Trouble at Enron, Wash. Post, Dec. 30, 2001, at A10. On December 2, 2001, Enron petitioned for Chapter 11 bankruptcy. This appeal arises out of Enron’s attempt to avoid and recover pre-petition payments it made to redeem, prior to" }, { "docid": "13713997", "title": "", "text": "Appellee Enron Creditors Recovery Corp., Oct. 29, 2009 (“Appellee’s Br”), at 4.) The Bankruptcy Court (Gonzalez, J.) denied the motions to dismiss. See Enron Corp. v. J.P. Morgan Sec., Inc. (In re Enron Corp.), 325 B.R. 671, 686 (Bankr.S.D.N.Y.2005) (“Enron I ”). Judge Gonzalez did not reach all of the issues raised by Enron. He did, however, make two critical rulings. First, Judge Gonzalez held that: because the § 546(e) safe harbor only protects from avoidance those settlement payments that are “commonly used in the securities trade” and because, on a motion to dismiss, the Court must accept Enron’s allegations as true, evidence must be presented as to whether payments made with respect to short-term commercial paper prior to the maturity date, at significantly above market prices and contrary to the offering documents in the midst of coercion by the holders of the commercial paper resulting from public announcements that make clear that the company is in a severe financial crisis constitute settlement payments commonly used in the securities trade. Enron I, 325 B.R. at 685-686. Put otherwise, the learned bankruptcy judge ruled that the uncommon nature of the transaction might impact whether the payments qualified as “settlement payments.” Second, Judge Gonzalez held that: evidence is also necessary as to whether the Transfers [early redemptions] were made to retire and extinguish the debt or to trade the securities. If the payments were made to retire the debt, the Court would need to address the issue of whether such payments — which were not then for the purchase, sale or loan of securities but were to satisfy the underlying debt obligation — are nonetheless settlement payments for the purposes of § 546(e). Id. at 686. Judge Gonzalez thus signaled the possibility that a settlement payment might be limited to particular types of securities transactions, of which redemption was not one. Enron II Following Judge Gonzalez’s decision in Enron I, most creditors filed motions for leave to file an interlocutory appeal. These motions were denied in 2007 by my colleague, Judge Daniels. After discovery, those creditors who had not already settled with" }, { "docid": "17366036", "title": "", "text": "settlement payment, a partial settlement payment, an interim settlement payment, a settlement payment on account, a final settlement payment, or any other similar payment commonly used in the securities trade.” The bankruptcy court denied the motion to dismiss. It held that the phrase “commonly used in the securities trade” in § 741(8) modifies all the terms in the section’s definition and thereby limits protected “settlement payments” to those that are common in the industry. In re Enron Corp., 325 B.R. 671, 685-86 & n. 7 (Bankr. S.D.N.Y.2005) (“Enron /”). The bankruptcy court held that evidence was necessary to determine whether the redemption payments were commonly used, rather than, as Enron alleged, extraordinary because they resulted from coercion by holders of the commercial paper. Id. at 686. It also held that a factual issue existed over whether Enron’s redemption payments were made to retire debt or to purchase the commercial paper, and that this distinction could affect whether the payments constituted settlement payments. Id. Most of the defendants settled with Enron after Judge Gonzalez denied their motions to dismiss. Following discovery, Alfa and ING, relying on § 546(e)’s safe harbor, moved for summary judgment. The bankruptcy court denied the motions. In re Enron Creditors Recovery Corp., 407 B.R. 17, 45 (Bankr.S.D.N.Y.2009) (“Enron II”). Concluding that “the transfer of ‘ownership’ of a security is an integral element in the securities settlement process,” it held that “settlement payments” include only payments made to buy or sell securities and not payments made to retire debt. Id. 37-41. The bankruptcy court relied on our decision in SEC v. Sterling Precision Corp., 393 F.2d 214 (2d Cir.1968), in which we held .that “a maker’s paying a note prior to maturity in accordance with its terms would not be regarded as a ‘purchase’ ” under the Investment Company Act of 1940. Enron II, 407 B.R. at 38 (quoting Sterling Precision, 393 F.2d at 217). The bankruptcy court concluded that Alfa and ING had not demonstrated that Enron’s payments were settlement payments as defined in § 741(8), because they had failed to establish that the payments were made" }, { "docid": "17366047", "title": "", "text": "by a comma. Because both the modifier and its immediate antecedent are set off from the preceding terms in the series, the last-antecedent rule applies. The phrase “commonly used in the securities industry” thus is properly read as modifying only the term “any other similar payment.” The phrase is not a limitation on the definition of settlement payment, but rather, as our sister circuits have held, it is “a catchall phrase intended to underscore the breadth of the § 546(e) exemption.” In re QSI Holdings, Inc., 571 F.3d at 550 (quoting Contemporary Indus. Corp., 564 F.3d at 986 (emphasis in original)). Moreover, Enron’s proposed reading would make application of the safe harbor in every case depend on a factual determination regarding the commonness of a given transaction. It is not clear whether that determination would depend on the economic rationality of the transaction, its frequency in the marketplace, signs of an intent to favor certain creditors — as suggested by the facts on which the bankruptcy court relied, such as the alleged coercion by Enron’s commercial paper noteholders, Enron II, 407 B.R. at 31 — or some other factor. This reading of the statute would result in commercial uncertainty and unpredictability at odds with the safe harbor’s purpose and in an area of law where certainty and predictability are at a premium. Accordingly, we hold that the phrase “commonly used in the securities industry” limits only the phrase immediately preceding it; it does not limit the other transactions that § 741(8) defines as settlement payments. III. Redemption of Debt Securities Enron next argues that the redemption payments are not settlement payments because they involved the retirement of debt, not the acquisition of title to the commercial paper. We find no basis in the Bankruptcy Code or the relevant case-law to interpret § 741(8) as excluding the redemption of debt securities. Because Enron’s redemption payments completed a transaction in securities, we hold that they are settlement payments within the meaning of § 741(8). The bankruptcy court agreed with Enron’s position, relying in large part on our decision in SEC v. Sterling" }, { "docid": "2019263", "title": "", "text": "redemption of the notes. Enron further maintains that it prepaid and redeemed the commercial paper by making full payment prior to its maturity. The payments were made at par, which was significantly more than the prevailing-market price at the time of the transfers. Therefore, Enron argues that the transfers, made for early redemption of commercial paper at significantly above-market price, were not “settlement payments” commonly used in the securities trade as required by section 546(e). Enron argues that the transfers were not to settle securities trades but, rather, were to prepay debt similar to the manner in which any borrower repays the principal and interest on a loan. At a minimum, Enron argues that evidence must be presented for the Court to determine whether the prepayment of commercial debt is ordinary or routine. Enron also argues that the safe harbor only extends to qualifying “purchases” and “sales” of securities, not to the payment or retirement of debt. Enron argues that the actual “ownership” of the instrument must transfer from seller to buyer. Here, there was no trade or exchange of ownership of a security but, rather, the payment of a debt which extinguished the instrument. In addition, Enron contends that the safe harbor protection does not apply to the commercial paper because the question of whether it qualifies as a security, within the scope of section 546(e), is made by reference to the securities trade which does not recognize short-term commercial paper as a security. More specifically, Enron maintains that short-term debt instruments issued for the purpose of funding current operations, and not for investment, are not commonly recognized as securities by the securities trade. With respect to Aeltus, Enron argues that Aeltus benefitted from the payment because if the transfer had not been made, and Enron had then defaulted on the commercial paper at maturity, Aeltus would have been subject to liability from the investors in the ING Funds. Enron contends that because the payment relieved Aeltus from this liability, Aeltus benefit-ted from the transfer. Pursuant to section 1109(a), which allows the SEC to raise an issue or appear" }, { "docid": "13713995", "title": "", "text": "making ‘book-entry’ changes to ownership of securities.” Id. at 22 n. 2. Specifically, on October 29, 2001, the commercial paper held by Alfa and ING was transferred to JP Morgan via the DTC; that is, the paper was debited from the transferor’s DTC accounts and credited to JP Morgan’s account, while the payments made by JP Morgan were credited to the former holders’ accounts and debited from JP Morgan’s account. Id. at 26, Later that same day, JP Morgan transferred the commercial paper it had received from Alfa and ING to the DTC account of Enron’s issuing and paying agent, and a corresponding payment was made by Enron to JP Morgan’s account at DTC. Id. The commercial paper was extinguished immediately thereafter pursuant to DTC rules governing early retirement of commercial paper. Id.; see also id. at 40 (DTC procedures). Confirmations of these transactions issued in the ordinary course. These confirmations referred to the transactions as securities trades, called them “purchases” from the holders, and referenced a “trade date” and “settlement date.” (See, e.g., App. of Appellants, Oct. 27, 2009 (“Appellants’ App.”), at A179-187.) The Proceedings Below Enron I In 2003, Enron brought nearly 200 adversary proceedings against the former noteholders, seeking to avoid and recover, as preferential or fraudulent transfers, the payments made for the purpose of prepaying individual notes prior to their maturity dates. The noteholders moved to dismiss Enron’s adversary complaints, arguing principally that the transfers were subject to the Section 546(e) safe harbor and therefore could not be avoided. In response, Enron had argued that: (1) its prepayments were not “settlement payments” because a payment to retire debt does not complete a “securities transaction”; (2) the safe harbor applies only to settlement payments that are “commonly used in the securities trade,” and these prepayments were extraordinary, not common; (3) when commercial paper is retired, it is not a security per the Securities Exchange Act of 1934; (4) section 546(e) applies only to securities transactions that could undermine the clearance and settlement system if unwound, and no such risk of a “ripple effect” exists here. (Br. of" }, { "docid": "2019295", "title": "", "text": "outstanding commercial paper prior to maturity. Indeed, certain of the commercial paper holders redeemed their notes just one to two days prior to maturity. Commercial paper is a note evidencing a debt, which entails the attendant credit risk. Enron argues that when the Investors acquired Enron’s commercial paper, they also acquired Enron’s credit risk, as that risk was inherent in the very nature of the instrument. Enron further argues that the section 546(e) safe harbor was not intended to protect creditors from a credit risk that they assumed. Enron maintains that the Investors freely assumed (1) the credit risk when they acquired the commercial paper, and (2) the preference risk when they accepted payoff of the debt prior to maturity. Enron further argues that the note evidencing the debt was retired before maturity. When Enron redeemed the commercial paper, it was transferred to the Chase IPA account and immediately extinguished. As soon as Enron’s commercial paper was prepaid, the Chase IPA withdrew it from the DTC system. Thus, Enron maintains that it did not acquire title or ownership of the commercial paper and there was no purchase or sale of the commercial paper as required for protection under the section 546(e) safe harbor. Rather, Enron argues that it merely paid off a debt and the Investors received payment on the underlying debt obligation. The Second Circuit has recognized that “a maker’s paying a note prior to maturity in accordance with its terms would not be regarded as a ‘purchase.’ ” SEC v. Sterling Precision Corp., 393 F.2d 214, 217 (2d Cir.1968). Further, the transfer of ownership of an asset is required for a purchase and sale. Id. (noting that “purchase” means “the acquisition of title to, or property in, anything for a price”). In Sterling Precision, the court concluded that when an entity discharges a bond or debenture, it does not acquire title to it. Id. Rather, “[pjayment and discharge of a bond is neither sale nor exchange within the commonly accepted meaning of the words.” Id. (quoting, Fairbanks v. United States, 306 U.S. 436, 437, 59 S.Ct. 607, 608," }, { "docid": "13713996", "title": "", "text": "of Appellants, Oct. 27, 2009 (“Appellants’ App.”), at A179-187.) The Proceedings Below Enron I In 2003, Enron brought nearly 200 adversary proceedings against the former noteholders, seeking to avoid and recover, as preferential or fraudulent transfers, the payments made for the purpose of prepaying individual notes prior to their maturity dates. The noteholders moved to dismiss Enron’s adversary complaints, arguing principally that the transfers were subject to the Section 546(e) safe harbor and therefore could not be avoided. In response, Enron had argued that: (1) its prepayments were not “settlement payments” because a payment to retire debt does not complete a “securities transaction”; (2) the safe harbor applies only to settlement payments that are “commonly used in the securities trade,” and these prepayments were extraordinary, not common; (3) when commercial paper is retired, it is not a security per the Securities Exchange Act of 1934; (4) section 546(e) applies only to securities transactions that could undermine the clearance and settlement system if unwound, and no such risk of a “ripple effect” exists here. (Br. of Appellee Enron Creditors Recovery Corp., Oct. 29, 2009 (“Appellee’s Br”), at 4.) The Bankruptcy Court (Gonzalez, J.) denied the motions to dismiss. See Enron Corp. v. J.P. Morgan Sec., Inc. (In re Enron Corp.), 325 B.R. 671, 686 (Bankr.S.D.N.Y.2005) (“Enron I ”). Judge Gonzalez did not reach all of the issues raised by Enron. He did, however, make two critical rulings. First, Judge Gonzalez held that: because the § 546(e) safe harbor only protects from avoidance those settlement payments that are “commonly used in the securities trade” and because, on a motion to dismiss, the Court must accept Enron’s allegations as true, evidence must be presented as to whether payments made with respect to short-term commercial paper prior to the maturity date, at significantly above market prices and contrary to the offering documents in the midst of coercion by the holders of the commercial paper resulting from public announcements that make clear that the company is in a severe financial crisis constitute settlement payments commonly used in the securities trade. Enron I, 325 B.R. at" }, { "docid": "13713999", "title": "", "text": "Enron moved for summary judgment, renewing the arguments they had made on the motion to dismiss. On June 29, 2009, the bankruptcy court denied those motions. See Enron Creditors Recovery Corp. v. J.P. Morgan Secs., Inc. (In re Enron Creditors Recovery Corp.), 407 B.R. 17 (Bankr.S.D.N.Y.2009) (“Enron IF’). Enron describes the bankruptcy court’s decision as having “re affirmed [the court’s] prior ruling that the ‘commonly used’ clause modified the definition of settlement payment in § 741(8),” even though the court “did not rely on this issue and instead ruled that Enron merely repaid and retired the commercial paper debt, which did not constitute a settlement payment, as no securities transaction had occurred.” (Appellee’s Br. at 5 (citing Enron II, 407 B.R., at 30-31, 37-41).) Enron’s description of Judge Gonzalez’s holding is somewhat inaccurate. First, in denying summary judgment, Judge Gonzalez repeatedly emphasized the unusual nature of Enron’s redemptions throughout his analysis of the applicability of the 546(e) safe harbor. See Enron II, 407 B.R. at 37-41. Specifically, Judge Gonzalez opined that whatever rules might apply to the redemption of commercial paper at maturity, “the transactions at issue [ ] were not conducted in the usual manner.” Id. at 37 (emphasis added). Indeed, he highlighted the fact that “in an orderly exit from the commercial paper market, the issuer usually draws down on its bank lines of credit to pay the commercial paper as it matures, not to prepay the commercial paper.” Id. at 38 (emphasis added). He also noted that “the record reflects that it was the insistence by the broker/dealers to depart from their usual role of principal in a commercial paper transaction that altered ‘business as usual ’ in the secondary market”; that “the broker/dealers were primary players in taking the transactions at issue outside the realm of what was common in the trade, by their efforts to depart from their usual role as principal”; and that “the insistence by each of the broker/dealers to act as agent, instead of their usual role of principal, further supports the proposition throughout the industry that no one readily considered the" }, { "docid": "13713998", "title": "", "text": "685-686. Put otherwise, the learned bankruptcy judge ruled that the uncommon nature of the transaction might impact whether the payments qualified as “settlement payments.” Second, Judge Gonzalez held that: evidence is also necessary as to whether the Transfers [early redemptions] were made to retire and extinguish the debt or to trade the securities. If the payments were made to retire the debt, the Court would need to address the issue of whether such payments — which were not then for the purchase, sale or loan of securities but were to satisfy the underlying debt obligation — are nonetheless settlement payments for the purposes of § 546(e). Id. at 686. Judge Gonzalez thus signaled the possibility that a settlement payment might be limited to particular types of securities transactions, of which redemption was not one. Enron II Following Judge Gonzalez’s decision in Enron I, most creditors filed motions for leave to file an interlocutory appeal. These motions were denied in 2007 by my colleague, Judge Daniels. After discovery, those creditors who had not already settled with Enron moved for summary judgment, renewing the arguments they had made on the motion to dismiss. On June 29, 2009, the bankruptcy court denied those motions. See Enron Creditors Recovery Corp. v. J.P. Morgan Secs., Inc. (In re Enron Creditors Recovery Corp.), 407 B.R. 17 (Bankr.S.D.N.Y.2009) (“Enron IF’). Enron describes the bankruptcy court’s decision as having “re affirmed [the court’s] prior ruling that the ‘commonly used’ clause modified the definition of settlement payment in § 741(8),” even though the court “did not rely on this issue and instead ruled that Enron merely repaid and retired the commercial paper debt, which did not constitute a settlement payment, as no securities transaction had occurred.” (Appellee’s Br. at 5 (citing Enron II, 407 B.R., at 30-31, 37-41).) Enron’s description of Judge Gonzalez’s holding is somewhat inaccurate. First, in denying summary judgment, Judge Gonzalez repeatedly emphasized the unusual nature of Enron’s redemptions throughout his analysis of the applicability of the 546(e) safe harbor. See Enron II, 407 B.R. at 37-41. Specifically, Judge Gonzalez opined that whatever rules might apply" }, { "docid": "17366035", "title": "", "text": "constructively fraudulent transfers under 11 U.S.C. § 548(a)(1)(B), because the redemption price exceeded the commercial paper’s fair market value. In 2004, the defendants in the adversary proceedings moved to dismiss Enron’s complaint for failure to state a claim. They argued that the redemption payments were “settlement payments” protected from avoidance under 11 U.S.C. § 546(e)’s safe harbor. Section 546(e) provides, in relevant part, that [notwithstanding sections ... 547 [and] 548(a)(1)(B) ... of this title, [which empower the trustee to avoid preferential and constructively fraudulent transfers,] the trastee may not avoid a transfer that is a ... settlement payment, as defined in section ... 741 of this title, made by or to (or for the benefit of) a ... stockbroker, financial institution, financial participant, or securities clearing agency ... that is made before the commencement of the case, except under section 548(a)(1)(A) of this title[, which empowers the trustee to avoid transfers made with actual intent to hinder, delay, or defraud creditors]. Section 741(8) of Title 11, in turn, defines a “settlement payment” as “a preliminary settlement payment, a partial settlement payment, an interim settlement payment, a settlement payment on account, a final settlement payment, or any other similar payment commonly used in the securities trade.” The bankruptcy court denied the motion to dismiss. It held that the phrase “commonly used in the securities trade” in § 741(8) modifies all the terms in the section’s definition and thereby limits protected “settlement payments” to those that are common in the industry. In re Enron Corp., 325 B.R. 671, 685-86 & n. 7 (Bankr. S.D.N.Y.2005) (“Enron /”). The bankruptcy court held that evidence was necessary to determine whether the redemption payments were commonly used, rather than, as Enron alleged, extraordinary because they resulted from coercion by holders of the commercial paper. Id. at 686. It also held that a factual issue existed over whether Enron’s redemption payments were made to retire debt or to purchase the commercial paper, and that this distinction could affect whether the payments constituted settlement payments. Id. Most of the defendants settled with Enron after Judge Gonzalez denied their" }, { "docid": "17366039", "title": "", "text": "the redemption. See In re Enron Creditors Recovery Corp., 422 B.R. 423, 424 (S.D.N.Y.2009) {“Enron IV”). The district court reversed the bankruptcy court. It concluded that § 546(e)’s safe harbor protects Enron’s redemption payments, and directed entry of summary judgment in favor of Alfa and ING. Id. at 442. The district court held (1) that § 741(8)’s definition of “settlement payment” is not limited to payments that are “commonly used,” and, therefore, that the circumstances of a particular payment do not bear on whether that payment fits within the definition, id. at 429-34; (2) that a “settlement payment is any transfer that concludes or consummates a securities transaction,” id. at 436; and (3) that Enron’s redemption constitutes a securities transaction regardless of whether Enron acquired title to the commercial paper, because the redemption involved “the delivery and receipt of funds and securities,” id. at 435-42. Enron appealed to this court. DISCUSSION On appeal, Enron argues that the bankruptcy court’s decision was correct and that the district court erred by holding that settlement payments under § 741(8) are not limited to those that are commonly used in the securities trade and that involve the transfer of title to a security. “A district court’s order in a bankruptcy ease is subject to plenary review, meaning that this Court undertakes an independent examination of the factual findings and legal conclusions of the bankruptcy court.” In re Duplan Corp., 212 F.3d 144, 151 (2d Cir.2000). Here, we review only the issue the district court agreed to hear on appeal: whether the § 546(e) ‘safe harbor’ ... extends to transactions in which commercial paper is redeemed by the issuer prior to maturity, using the customary mechanism of the Depository Trust Company ... for trading in commercial paper ..., without regard to extrinsic facts about the nature of the [transactions], the motive behind the [transactions], or the circumstances under which the payments were made. Enron IV, 422 B.R. at 424. As several of our sister circuits have held, the meaning of “settlement payment” under § 741(8) is a matter of statutory construction and thus a question" }, { "docid": "17366038", "title": "", "text": "to acquire title to the commercial paper rather than to retire debt. Id. at 37-41. At several points in its opinion, the bankruptcy court, to buttress its denial of summary judgment, emphasized facts (most of which are disputed) regarding the allegedly unusual nature of Enron’s redemption. These include the above-market price Enron paid, the alleged insistence of the broker-dealers to act as intermediaries instead of principals, and the supposed rarity of commercial paper prepayments in general. See, e.g., id. at 37-38. Alfa and ING sought, and were granted by the district court, interlocutory review of the bankruptcy court’s decision denying summary judgment. See In re Enron Creditors Recovery Corp., No. 01-16034, 2009 WL 3349471 (S.D.N.Y. Oct.16, 2009) {“Enron III ”). The district court limited the scope of review to the question whether the § 546(e) safe harbor applies to an issuer’s redemption of commercial paper prior to maturity, effected through the customary mechanism of transacting in commercial paper through the Depository Trust Company, without regard to extrinsic facts, such as the motives and circumstances of the redemption. See In re Enron Creditors Recovery Corp., 422 B.R. 423, 424 (S.D.N.Y.2009) {“Enron IV”). The district court reversed the bankruptcy court. It concluded that § 546(e)’s safe harbor protects Enron’s redemption payments, and directed entry of summary judgment in favor of Alfa and ING. Id. at 442. The district court held (1) that § 741(8)’s definition of “settlement payment” is not limited to payments that are “commonly used,” and, therefore, that the circumstances of a particular payment do not bear on whether that payment fits within the definition, id. at 429-34; (2) that a “settlement payment is any transfer that concludes or consummates a securities transaction,” id. at 436; and (3) that Enron’s redemption constitutes a securities transaction regardless of whether Enron acquired title to the commercial paper, because the redemption involved “the delivery and receipt of funds and securities,” id. at 435-42. Enron appealed to this court. DISCUSSION On appeal, Enron argues that the bankruptcy court’s decision was correct and that the district court erred by holding that settlement payments under §" } ]

[ { "docid": "23050686", "title": "", "text": "§ 24 (b) had no application to a taxpayer’s sale of securities on the Exchange to an unknown purchaser, regardless of what other circumstances accompanied the sale. We have decided otherwise, and on our construction of the statute, and the conceded facts, the Tax Court could not have reached a result contrary to our own. Affirmed. MR. Justice Burton took no part in the consideration or decision of these cases. The material parts of § 24 (b) are as follows: “(b) Losses from Sales or Exchanges of Property.— “(1) Losses Disallowed. — In computing net income no deduction shall in any case be allowed in respect of losses from sales or exchanges of property, directly or indirectly— “(A) Between members of a family, as defined in paragraph (2) (D); “(B) Except in the case of distributions in liquidation, between an individual and a corporation more than 50 per centum in value of the outstanding stock of which is owned, directly or indirectly, by or for such individual; “(C) Except in the case of distributions in liquidation, between two corporations more than 50 per centum in value of the outstanding stock of each of which is owned, directly or indirectly, by or for the same individual, if either one of such corporations, with respect to the taxable year of the corporation preceding the date of the sale or exchange was, under the law applicable to such taxable year, a personal holding company or a foreign personal holding company; “(D) Between a grantor and a fiduciary of any trust ; “(E) Between the fiduciary of a trust and the fiduciary of another trust, if the same person is a grantor with respect to each trust; or “(F) Between a fiduciary of a trust and a beneficiary of such trust.” Section 24 (b) (2) (D) defines the family of an individual to include “only his brothers and sisters (whether by the whole or half blood), spouse, ancestors, and lineal descendants; . . . .” 45 B. T. A. 478, affirmed, 132 F. 2d 660 (C. C. A. 2). 5 T. C. 623. 158" } ]

[ { "docid": "17954330", "title": "", "text": "blood), spouse, ancestors, and lineal descendants ; The forerunners of section 267(a)(1) were section 24(a)(6) of (he Revenue Act of 1934 and its cognate section 24(b) (1) (A) of the Internal Revenue Code of 1939. Prior to 1934 there was a fertile held for phantom sales and exchanges with the sole purpose of creating tax losses in transactions between related individuals. Although such pre-1934 losses were disallowed where the sales were lacking in bona fides, cf. Charles E. Mitchell, 32 B.T.A. 1093, revd. 89 F. 2d 873 (C.A. 2, 1937), but ultimately approved 303 U.S. 391, the problems of proof in cases involving intimate family relations presented extraordinary difficulties. Accordingly, since the property still remained within the same family group after sale, Congress determined to impose an absolute prohibition against deduction in respect of such transactions, irrespective of the bona fides of the sale. The scope of these new provisions was thoroughly considered by the Supreme Court in McWilliams v. Commissioner, 331 U.S. 694 (1947), which emphasized their broad sweep. The Supreme Court clearly stated that the statutory language in the question provides “an absolute prohibition — not a presumption— against the allowance of losses on any sales between the members of certain designated groups,” and in the sentence following the foregoing quotation, stated that “The one common characteristic of these groups is that their members, although distinct legal entities, generally have a near-identity of economic interests.” The Court continued (p. 699) : It is a fair inference that even legally genuine intra-group transfers were not thought to result, usually, in economically genuine realizations of loss, and accordingly that Congress did not deem them to be appropriate occasions for the allowance of deductions. The pertinent legislative history lends support to this inference. The Congressional Committees, in reporting the provisions enacted in 1934, merely stated that “the practice of creating losses through transactions between members of a family and close corporations has been frequently utilized for avoiding the income tax,” and that these provisions were proposed to “deny losses to be taken in the case of [such] sales” and “to close" }, { "docid": "12163839", "title": "", "text": "made, his interest at dissolution would always equal his distributive cash. Actually any additional loss must be a loss upon some specific property which then is nondeductible under the circumstances here by reason of § 24(b) (1) (B). Hence on the thirteen petitions for review by the Commissioner, the decisions of the Tax Court will be reversed and the proceedings remanded for recomputation of the various taxes upon the basis of exclusion of losses as directed in this opinion. On the thirteen petitions for review by the taxpayers, the decisions are affirmed. The partners were: J. P. Morgan, Thomas W. Lamont, Junius S. Morgan, George Whitney, R. C. Leffingwell, Francis D. Bartow, Arthur M. Anderson, Thomas S. Lamont, H. P. Davison, Charles D. Dickey, Henry C. Alexander, I. C. Raymond Atkin, and William A. Mitchell. Three of the partners have since died and are now represented by their executors ; J. P. Morgan died before the petitions to the Tax Court, while Francis D. Bartow died during their pendency, and Thomas W. Lamont after the filing of the petitions for review. “§ 24. Items not deductible “(b) Losses from sales or exchanges of property “(1) Losses disallowed. In computing net income no deduction shall in any case be allowed in respect of losses from sales or exchanges of property, directly or indirectly— ****** “(B) Except in the case of distributions in liquidation, between an individual and a corporation more than 50 per centum in value of the outstanding stock of which is owned, directly or indirectly, by or for such individual. * * *” Notwithstanding legislative repeal of the rule of Dobson v. C. I. R., 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, by amendment of I. R. C. § 1141(a) by c. 646, Pub. L. No. 773, 86th Cong., 2d Sess., June 25, 1948, § 36, 26 U.S.C.A.Int.Rev.Code, § 1141(a). While this statute does not become effective until September 1, 1948, our question here, being the interpretation of a statute, is reviewable under McWilliams v. C. I. R., 331 U.S. 694, 67 S.Ct. 1477, 91 L.Ed. 1750," }, { "docid": "17441663", "title": "", "text": "by the owner of a tire retreading and repairing business as,a result of a sale to his brother was not deductible, Jordan C. Skinner, 47 B. T. A. 624; affd., 138 Fed. (2d) 418, and only recently that a loss sustained by a taxpayer who withdrew his interest in a joint account operated by himself, his mother, and his two sisters as a joint venture was not deductible, Henry V. B. Smith, 5 T. C. 323. Cf. Lewis L. Fawcett, 3 T. C. 308; affd., 149 Fed. (2d) 433. For the reasons stated, we hold that Louis A. Blum is not entitled to any deduction for the loss he sustained as a result of the transaction with his brother. As for the delinquency penalty, the only explanation offered by the petitioner for t'he delay was that he needed some figures from Nathan Blum or his accountant, which “somehow or other” he was unable to obtain. There is no showing in the record as to what efforts petitioner made to obtain the necessary figures or as to why he was unable to obtain them. There is no showing that he exercised ordinary business care and prudence in attempting to file a timely return. We have, therefore, found as a fact that the delay was not due to a reasonable cause, and we accordingly hold that the delinquency penalty was properly asserted by the respondent. Decisions will be entered for the respondent. SBC. 24. ITEMS NOT DEDUCTIBLE. ******* (b) Losses from Sales or Exchanges of Property.— (1) Losses disallowed. — In computing net income no deduction shall in any case be allowed in respect of losses from sales or exchanges of property, directly or indirectly— (A) Between members of a family, as defined in paragraph (2) (D) ; ******* (2) Stock ownership, family and partnership rule. — For the purposes of determining, in applying paragraph (1), the ownership of stock— ******* (D) The family of an individual shall include only his brothers and sisters (whether by the whole or half blood), spouse, ancestors, and lineal descendants; * * *" }, { "docid": "13937838", "title": "", "text": "invention need not be patented nor a patent application filed at the time of the transfer for the section to be applicable, so long as the invention is patentable. Treas.Reg. § 1.1235-2(a); See E. H. Philbrick, 27 T.O. 346, 356 (1956). . Section 267(b) (2), as modified by the 1958 amendment of Section 1235(d), includes within the definition of related persons a corporation more than 25 per cent owned (actually or constructively) by an individual. A corporation, thus, cannot be used as the vehicle to consummate the interdicted conversion of ordinary income to capital gains via a sale of patents within the same economic group. There is no reason to suppose that Congress necessarily would have treated corporations and partnerships alike. Compare §§ 351 and 368(c) with § 707(b) (2) (A). But it is doubtful that Congress, had it foreseen the problem, would have left the door to the partnership vehicle completely unlocked. . § 707. Transactions between partner and partnership (a) Partner not acting in capacity as partner. — If a partner engages in a transaction with a partnership other than in his capacity as a member of such partnership, the transaction shall, except as otherwise provided in this section, be considered as occurring between the partnership and one who is not a partner. (b) Certain sales or exchanges of property with respect to controlled partnerships.— (1) Losses disallowed. — No deduction shall be allowed in respect of losses from sales or exchanges of property (other than an interest in the partnership), directly or indirectly, between— (A) a partnership and a partner owning, directly or indirectly, more than 50 percent of the capital interest, or the profits interest, in such partnership, or (B) two partnerships in which the same persons own, directly or indirect ly, more than 50 percent of the capital interests or profits interests. In the case of a subsequent sale or exchange by a transferee described in this paragraph, section 267(d) shall be applicable as if the loss were disallowed under section 267 (a) (1). (2) Gains treated as ordinary income. — In the case of" }, { "docid": "22613645", "title": "", "text": "Court, •post, p. 523. David Stewart v. Commissioner, 17 B. T. A. 604; Corrado & Galiardi, Inc. v. Commissioner, 22 B. T. A. 847; Edward Securities Corporation v. Commissioner, 30 B. T. A. 918; Ralph Hochstetter v. Commissioner, 34 B. T. A. 791; John Thomas Smith v. Commissioner, supra, 40 B. T. A. 387. 18 B. T, A. 1225, a rehearing affirmed May 26, 1932, unpublished. Helvering v. Wishire Oil Co., ante, p. 90. Cf. Estate of Sanford v. Commissioner, ante, p. 39. 48 Stat. 680, 691. “Sec. 24. Items not Deductible. “(a) General Rule. — In computing net income no deduction shall in any case be allowed in respect of— “(6) Loss from sales or exchanges of property, directly or indirectly, (A) between members of a family, or (B) except in the case of distributions in liquidation, between an individual and a corporation in which such individual owns, directly or indirectly, more than 50 per centum in value of the outstanding stock. For the purpose of this paragraph — (C) an individual shall be considered as owning the stock owned, directly or indirectly, by his family; and (D) the family of an individual shall include only his brothers and Sisters (whether by the whole or half blood), spouse, ancestors, and lineal descendants.” 49 utat. 1561, 28 U. S. C. § 695. The Revenue Act of 1932, c. 209, 47 Stat. 169, 196, § 112 (b) (5), provided: “No gain or loss shall be recognized if property is transferred to a corporation by one or more persons solely in exchange for stock or securities in such corporation, and immediately after the exchange such person or persons are in control of the corporation; . . .” Mr. Justice Roberts, dissenting. I think the judgment should be affirmed. To reverse it is to disregard a rule respecting the separate entity o\" corporations having basis in logic and practicality and which has long been observed in the administration of the revenue acts. Since the inception of the system of federal income taxation, capital gains have been taxed and certain capital losses have been" }, { "docid": "17954329", "title": "", "text": "and that the Internal Revenue Service merely served as a conduit for passing title to the stock, via the distraint sale, from James to Amanda. He also claims that there was a prearranged plan by petitioners that Amanda would purchase the stock seized from James. Section 267, I.R.C. 1954, provides, in pertinent part, as follows: (a) Deductions Disallowed. — No deduction shall he allowed— (1) Dosses. — In respect of losses from sales or exchanges of property (other than losses in cases of distributions in corporate liquidations), directly or indirectly, between persons specified within any one of the paragraphs of subsection (b). (b) Relationships. — The persons referred to in subsection (a) are: (1) Members .of a family, as defined in subsection (c) (4) ; sis * t- ❖ * * * (c) Constructive Ownership of Stock. — For purposes of determining, in applying subsection (b), the ownership of stock— -¡: * * * * * (4) The family of an individual shall include only his brothers and sisters (whether by the whole or half blood), spouse, ancestors, and lineal descendants ; The forerunners of section 267(a)(1) were section 24(a)(6) of (he Revenue Act of 1934 and its cognate section 24(b) (1) (A) of the Internal Revenue Code of 1939. Prior to 1934 there was a fertile held for phantom sales and exchanges with the sole purpose of creating tax losses in transactions between related individuals. Although such pre-1934 losses were disallowed where the sales were lacking in bona fides, cf. Charles E. Mitchell, 32 B.T.A. 1093, revd. 89 F. 2d 873 (C.A. 2, 1937), but ultimately approved 303 U.S. 391, the problems of proof in cases involving intimate family relations presented extraordinary difficulties. Accordingly, since the property still remained within the same family group after sale, Congress determined to impose an absolute prohibition against deduction in respect of such transactions, irrespective of the bona fides of the sale. The scope of these new provisions was thoroughly considered by the Supreme Court in McWilliams v. Commissioner, 331 U.S. 694 (1947), which emphasized their broad sweep. The Supreme Court clearly stated" }, { "docid": "13937839", "title": "", "text": "a transaction with a partnership other than in his capacity as a member of such partnership, the transaction shall, except as otherwise provided in this section, be considered as occurring between the partnership and one who is not a partner. (b) Certain sales or exchanges of property with respect to controlled partnerships.— (1) Losses disallowed. — No deduction shall be allowed in respect of losses from sales or exchanges of property (other than an interest in the partnership), directly or indirectly, between— (A) a partnership and a partner owning, directly or indirectly, more than 50 percent of the capital interest, or the profits interest, in such partnership, or (B) two partnerships in which the same persons own, directly or indirect ly, more than 50 percent of the capital interests or profits interests. In the case of a subsequent sale or exchange by a transferee described in this paragraph, section 267(d) shall be applicable as if the loss were disallowed under section 267 (a) (1). (2) Gains treated as ordinary income. — In the case of a sale or exchange, directly or indirectly, of property, which in the hands of the transferee, is property other than a capital asset as defined in section 1221— (A) between a partnership and a partner owning, directly or indirectly more than 80 percent of the capital interest, or profits interest, in such partnership, or (B) between two partnerships in which the same persons own, directly or indirectly, more than 80 percent of the capital interests or profits interests, any gain recognized shall be considered as gain from the sale or exchange of property other than a capital asset. (3) Ownership of a capital or profits interest. — For purposes of paragraphs (1) and (2) of this subsection, the ownership of a capital or profits interest in a partnership shall he determined in accordance with the rules for constructive ownership of stock provided in section 267(c) other than paragraph (3) of such section. (e) Guaranteed payments. — To the extent determined without regard to the income of the partnership, payments to a partner for services or" }, { "docid": "10459061", "title": "", "text": "F. 2d 383, certiorari denied, 334 U. S. 819, and if there was a sale or exchange of his interest it would be subject to the limitations of sections 23 (g) and 117 of the Internal Revenue Code. It is, therefore, necessary for us to determine whether petitioner’s withdrawal from the firm of Baker-Botts represented the sale or exchange of his interest in the partnership. The words “sale” and “exchange” as used in the Internal Revenue Code must be given their ordinary meanings. Helvering v. Flaccus Oak Leather Co., 313 U. S. 247; Hale v. Helvering, 32 B. T. A. 356, affd., 85 F. 2d 819. Respondent contends that when Gannon separated from the firm he left the $10,770.42 he had paid for his partnership interest in the firm in consideration of the firm’s freeing him from the restriction imposed when he signed the partnership agreement, thereby creating an exchange of property rights and bringing the transaction within the provisions of section 117 of the Code. We cannot agree with this contention. Petitioner’s interest in the partnership represented a valuable asset and when he withdrew from the firm of Baker-Botts he lost this asset without receiving any consideration. Petitioner’s withdrawal resulted in a forfeiture of his $10,770.42. Although a forefeiture in some special instances may result in a capital gain or loss (see section 117 (g), I. R. C.) the forefeiture of petitioner’s $10,770.42 was not a sale or exchange as those words are ordinarily used and, therefore, petitioner’s loss is not limited by section 117 of the Internal Revenue Code. Reviewed by the Court. Decisions will he entered, under Rude 50. SEC. 23. deductions FROM GROSS INCOME. (e) Losses by Individuals. — In the case of an individual, losses sustained during the taxable year and not compensated for by insurance or otherwise— (1) if incurred in trade or business ; or (2) if incurred in any transaction entered into for profit, though not connected with the trade or business ; or (3) of property not connected with the trade or business, if the loss arises from fires, storms, shipwreck," }, { "docid": "12163816", "title": "", "text": "losses from sales or exchanges of property — except in the case of distributions in liquidation — between an individual and a corporation whose stock is more than 50 per cent owned by or for him. Our problem is shortly whether this provision includes or excludes partnership holdings. The provision was originally enacted in 1934 as § 24(a) (6) (B) ; it then included, in addition to the present prohibition, only those between “members of a family.” It reached substantially its present form in 1937, § 301, when there were added to the prohibited groups: two personal holding companies with stock ownership of more than 50 per cent in or for the same individual ; the grantor and fiduciary of any trust; the fiduciaries of two trusts from the same grantor; the fiduciary and beneficiary of any trust. Among rules for the determination of stock ownership are subds. (B) and (C) of I.R.C. § 24(b) (2), providing that an individual shall be considered as owning “the stock owned, directly or indirectly, by or for his family,” and “the stock owned, directly or indirectly, by or for his partner” (the first, B, dating from 1934, and the second, C, from 1937). Further, as is well known, a partnership is not taxable; the individual partners are liable in their individual capacity for both indi vidual income and their respective shares of partnership income computed according to the statutory rules. I.R.C. §§ 181-183, 26 U.S.C.A.Int.Rev.Code, §§ 181-183. When these detailed statutory provisions are read against the background of the legislative history and the problem as it was presented to the Congress in 1934, we cannot feel that there can be any serious doubt as to the legislative intent or any substantial ground for believing that Congress intended to leave so large a loophole- — almost as large as the one it was trying to close — from its prohibition against deductible losses upon transfers between closely related persons or groups. Indeed, the only thing which would give us pause is the unanimous decision of the Tax Court, whose expert view is always entitled" }, { "docid": "5277637", "title": "", "text": "gain and loss from sales or exchanges of capital assets, there shall be computed— (A) An ordinary net income which shall consist of the' excess of the gross income over the deductions: or (B) An ordinary net loss which shall consist of the excess of the- deductions over the gross income. The provisions of Section 183 (b) calling for segregation of capital gains and losses are to be contrasted with the provisions of Section 183 (c) and (d) which completely eliminate charitable contributions and the standard deduction in determining partnership net income, and which provide explicitly for the manner of allocating to the individual partner his share of any charitable contributions. The individual partner’s distributive share of ordinary income and capital gains, on the other hand, is charged to him in the traditional manner by Section 182. Arundell, J., dissenting: The question presented is one of first impression and the answer is not free from doubt. However, I think the statute requires a different answer than the one arrived at by the majority. A partnership while generally spoken of as an income computing entity is not a tax computing entity, for it is always the taxpayer who computes the tax and the taxpayer is the partner and not the partnership. Section 182 of the Internal Revenue Code provides how the net income of a partner will be computed and in subsections (a) and (b) it states that his distributive share of the capital gains and losses of the partnership (whether short-term or long-term) will be included as part of his gains and losses from the sale or exchange of capital assets. It is only in subsection (c) that it is stated that the partner’s distributive share of the ordinary net income will be as computed by the partnership as such, or in the language of the statute as computed in section 183 (b). When we turn to section 183 (b) we find that (b) (1) provides that in computing the net income of a partnership “There shall be segregated the gains and losses from sales or exchanges of capital assets,”" }, { "docid": "12163815", "title": "", "text": "reviewed by the full Tax Court without dissent, held that the section did not prohibit deduction of these losses — being “partnership losses” — and therefore directed their allowance. 8 T.C. 1019. The Commissioner’s petitions for review in each of the thirteen cases raise therefore the question as to the appropriate construction of this statutory provision. For consideration of this question it is not necessary to set forth the details of each partner’s interest or of other relevant facts, particularly as they are stated in the opinion below. For all the partners the short-term capital losses aggregated $1,598,871.01; and the long-term capital losses, after applying the percentages applicable in 1940 under I.R.C. § 117 (b), 26 U.S.C.A.Int.Rev.Code, § 117(b), amounted to $1,230,368.01. The taxpayers’ cross-petitions bring up separate issues concerning the disallowance by the Tax Court of losses claimed upon certain securities in default contributed by the firm to the corporation; we shall postpone discussion of this phase of the appeal until later. Sec. 24(b) (1) (B) prohibits any deduction, in computing net income, for losses from sales or exchanges of property — except in the case of distributions in liquidation — between an individual and a corporation whose stock is more than 50 per cent owned by or for him. Our problem is shortly whether this provision includes or excludes partnership holdings. The provision was originally enacted in 1934 as § 24(a) (6) (B) ; it then included, in addition to the present prohibition, only those between “members of a family.” It reached substantially its present form in 1937, § 301, when there were added to the prohibited groups: two personal holding companies with stock ownership of more than 50 per cent in or for the same individual ; the grantor and fiduciary of any trust; the fiduciaries of two trusts from the same grantor; the fiduciary and beneficiary of any trust. Among rules for the determination of stock ownership are subds. (B) and (C) of I.R.C. § 24(b) (2), providing that an individual shall be considered as owning “the stock owned, directly or indirectly, by or for his" }, { "docid": "4723778", "title": "", "text": "paid within 2% months of the close of each respective year. Using essentially identical language to sec. 267(b)(2), sec. 24(b)(1)(B), 1939 Code, provides, in pertinent part, the following: SEC. 24. ITEMS NOT DEDUCTIBLE. (b) Losses from Sales or Exchanges of Property.— (1)Losses disallowed. — In computing net income no deduction shall in any case be allowed in respect of losses from sales or exchanges of property, directly or indirectly— (B) Except in the case of distributions in liquidation, between an individual and a corporation more than 50 per centum in value of the outstanding stock of which is owned, directly or indirectly, by or for such individual; We further note that sec. 24(c), 1939 Code, provides, in language very similar to that appearing in sec. 267(a)(2), as follows: SEC. 24(c). Unpaid Expenses and Interest. — In computing net income no deduction shall be allowed under section 23(a) [predecessor provision of sec. 162], relating to expenses incurred, or under section 23(b) [predecessor provision of sec. 163], relating to interest accrued— (1) If such expenses or interest are not paid within the taxable year or within two and one-half months after the close thereof; and (2) If, by reason of the method of accounting of the person to whom the payment is to be made, the amount thereof is not, unless paid, includible in the gross income of such person for the taxable year in which or with which the taxable year of the taxpayer ends; and (3) If, at the close of the taxable year of the taxpayer or at any time within two and one-half months thereafter, both the taxpayer and the person to whom the payment is to be made are persons between whom losses would be disallowed under section 24(b). Sec. 24(b)(2)(C), 1939 Code, attributed to an individual who owned any stock in a corporation, any stock owned by his partner. This attribution rule is now incorporated in sec. 267(c)(3). See also Nash Miami Motors, Inc. v. Commissioner, T.C. Memo. 1964-230, affd. without discussion of this issue 358 F.2d 636 (5th Cir. 1966), cert. denied 385 U.S. 918" }, { "docid": "5277636", "title": "", "text": "months, his distributive share of the gains and losses of the partnership from sales or exchanges of capital assets held for not more than 6 months. (b) As part of his gains and losses from sales or exchanges of capital assets held for more than 6 months, his distributive share of the gains and losses of the partnership from sales or exchanges of capital assets held for more than 6 months. (c) His distributive share of the ordinary net income or the ordinary net loss of the partnership, computed as provided in section 183 (b). SBC. 1S3. COMPUTATION OF PARTNERSHIP INCOME. (a) General Rule. — The net Income of the partnership shall be computed in the same manner and on the same basis as in the case of an individual, except as provided in subsections (b), (c),and (d). (b) Segregation of Items.— (1) Capital gains and losses. — There shall be segregated the gains and losses from sales or exchanges of capital assets. (2). Ordinary net income or loss. — After excluding all items of gain and loss from sales or exchanges of capital assets, there shall be computed— (A) An ordinary net income which shall consist of the' excess of the gross income over the deductions: or (B) An ordinary net loss which shall consist of the excess of the- deductions over the gross income. The provisions of Section 183 (b) calling for segregation of capital gains and losses are to be contrasted with the provisions of Section 183 (c) and (d) which completely eliminate charitable contributions and the standard deduction in determining partnership net income, and which provide explicitly for the manner of allocating to the individual partner his share of any charitable contributions. The individual partner’s distributive share of ordinary income and capital gains, on the other hand, is charged to him in the traditional manner by Section 182. Arundell, J., dissenting: The question presented is one of first impression and the answer is not free from doubt. However, I think the statute requires a different answer than the one arrived at by the majority. A partnership" }, { "docid": "17788660", "title": "", "text": "anything in return for his investment. In Gaius G. Gannon, supra, we held that the loss sustained was a loss incurred in his trade or business and the loss did not represent the sale or exchange of a capital asset. On the authority of Gaius G. Gannon we hold that respondent erred in disallowing the loss of $22,500 claimed by petitioners in their tax returns for the year 1945. An additional problem is raised in these proceedings which was not raised in Gaius G. Gannon, supra. In their petitions the peti tioners claim as a loss, in addition to the $22,500 which represented the sum that petitioner had paid for his 7.5 units in the Baker-Botts firm, a deductible community loss of $18,750 forfeited by petitioner Palmer Hutcheson at the time of his withdrawal as a liquidated amount to which he alleges he would have been otherwise entitled in lieu of earned and uncollected fees. By amended petitions petitioners also claim as a loss (a) petitioner’s share of Baker-Botts’ investment in furniture, equipment, etc., less depreciation from 1921 through 1945, or $3,058.93; and (b) petitioner’s share of the “nondeductible donations” made by Baker-Botts from 1921 through 1945, or $3,479.24. The $18,750 claimed by petitioners as a loss represents an amount which petitioner alleges he would have received in lieu of earned but uncollected fees if petitioner had retired from the practice of law or if petitioner’s death occurred while he was a member of the firm. See Article VII B (2) of the partnership agreement incorporated in our findings of fact. This amount was never reported as income, and petitioners show no other way of having obtained a basis for this claimed loss. Sections 111 and 113, Internal Revenue Code. To allow petitioners this amount as a loss would be akin to allowing a deduction for a bad debt arising from unpaid wages, salaries, rents, and other similar items of taxable income which were never reported as income by the taxpayer. Regulations 111, section 29.23 (k)-2. Charles A. Collins, 1 B. T. A. 305; Bush Terminal Buildings Co.., 7 T." }, { "docid": "13979351", "title": "", "text": "the Code, 26 U.S.C. § 761(d), and a loss engendered by such a distribution would be recognized under § 731(a) of the Code, 26 U.S.C. § 731(a), as a loss from the sale or exchange of the partnership interests of the distributee partners. Finally, § 741 of the Code, 26 U.S.C. § 741, provides that any such loss recognized to a partner shall be considered as a loss from the sale or exchange of a capital asset, except to the extent that the property distributed was substantially appreciated inventory and unrealized receivables. See § 751 of the Code, 26 U.S.C. § 751. Given this general statutory framework, the appellants argue that because the entire venture was abandoned, there was no liquidating distribution, hence no deemed sale or exchange of a partnership interest, and no capital loss treatment. Zeeman v. United States, 275 F.Supp. 235, 253 (S.D.N. Y.1967) (relying upon § 165(c)(1) of the Code, 26 U.S.C. § 165(c)(1)), aff’d and remanded on other issues, 395 F.2d 861, 865 (2d Cir. 1968). The Commissioner’s position is that the appellants have not proved the lack of a distribution upon termination and further that, even if there had been no distribution, because there was no partnership property available to distribute, the resulting loss at termination would nevertheless be a capital loss. The Commissioner requests that we overrule the district court’s handling of the matter in Zeeman. See Rev.Rul. 76-189, I.R.B. 1976-20, where the Commissioner set forth his position subsequent to the oral argument on this appeal. We need not reach the Commissioner’s second argument; we agree that there is no proof that there was a total abandonment of the partnership without some type of distribution. Appellants’ entire argument is based upon the premise that when the partnership terminated, there was a total abandonment or forfeiture similar to those treated in Gaius G. Gannon, 16 T.C. 1134 (1951), and Palmer Hutcheson, 17 T.C. 14 (1951). In those cases, both of which were decided prior to the enactment of the partnership provisions contained in the 1954 Code, the taxpayers received absolutely nothing in return for" }, { "docid": "12450911", "title": "", "text": "support, there was no error in withdrawing that issue from the jury and directing a verdict as to it for the government. Accordingly, the judgment below is Affirmed. . “Fair market value of 7%% partnership interest on or about September 25, 1957. $ 71,250.00 Plus Robert B. Dupree’s share of net earnings through July 31, 1960. 22,015.64 Less Robert B. Dupree’s withdrawal through July 31, 1960. (18,000.00) Plus Robert B. Dupree’s share of capital gain on sale of assets on August 1, 1960. 52,441.31 Robert B. Dupree’s basis of 7%% in the partnership interest, after sale and before liquidation distribution. $127,706.95 . 26 U.S.C.A. Sec. 732(b): “The basis of property (other than money) distributed by a partnership to a partner in liquidation of the partner’s interest shall be an amount equal to the adjusted basis of such partner’s interest in the partnership reduced by any money distributed in the same transaction.” . 26 U.S.C.A., Sec. 702: “(a) General Rule. — In determining his income tax, each partner shall take into account separately his distributive share of the partnership’s— (1) gains and losses from sales or exchanges of capital assets held for not more than 6 months. (2) gains and losses from sales or exchanges of capital assets held for more than 6 months, (3) gains and losses from sales or exchanges of property described in Section 1231 (relating to certain property used in a trade or business and involuntary conversions).” . 26 U.S.C.A. 743(b): “Adjustment to basis of partnership property. In the case of a transfer of an interest in a partnership by sale or exchange or upon the death of a partner, a partnership with respect to which the election provided in Section 754 is in effect shall— (1) increase the adjusted basis of the partnership property by the excess of the basis to the transferee partner of his interest in the partnership over his proportionate share of the adjusted basis of the partnership property, or (2) decrease the adjusted basis of the partnership property by the excess of the transferee partner’s proportionate share of the adjusted basis of" }, { "docid": "7786350", "title": "", "text": "In computing net income there shall be allowed as deductions: ******* (g) CAPITA!, LOSSES.— ******* (2) Securities bbcomikg worthless. — If any securities (as defined in paragraph (8) of this subsection) become worthless during the taxable year and are capital assets, the loss resulting therefrom shall, for the purposes of this chapter, be considered as a loss from the sale or exchange, on the last day of such taxable year, of capital assets. SEC. 188. DIFFERENT TAXABLE TEARS OF PARTNER AND PARTNERSHIP. If the taxable year of a partner is different from that of the partnership, the inclusions with respect to the net income of the partnership, in computing the net income of the partner for his taxable year, shall be based upon the net Income of the partnership for any taxable year of the partnership (whether beginning on, before, or after January 1, 1939) ending within or with the taxable year of the partner. This provision, amended by sec. 340(a), Revenue Act of 1951, was reenacted as sec. 7701 (a) (2), 1954 Code, set forth at footnote 28, supra. SBC. 1231. [1954 Code] PROPERTY USED IN THE TRADE OR BUSINESS AND INVOLUNTARY CONVERSIONS. (b) Definition of Property Used in the Trade or Business. — For purposes of this section— (1) General rule. — The term “property used in the trade or business” means property used in the trade or business, of a character which is subject to the allowance for depreciation provided in section 167, held for more than 6 months, * * * Since petitioner first relied upon section 1231 of the 1954 Code on reply brief, we do not Interpret respondent’s silence on the depreciation issue as implicit acquiescence in petitioner’s view of the facts. Cf. Blodgett v. Holden, 275 U.S. 142 ; Woodworth, v. Kales, 26 F. 2d 178; Saul M. Weingarten, 38 T.C. 75. SEC. 291. FAILURE TO FILE RETURN. (a) In case of any failure to make and file return required by this chapter, within the time prescribed by law or prescribed by the Commissioner in pursuance of law, unless it is shown that" }, { "docid": "5277638", "title": "", "text": "while generally spoken of as an income computing entity is not a tax computing entity, for it is always the taxpayer who computes the tax and the taxpayer is the partner and not the partnership. Section 182 of the Internal Revenue Code provides how the net income of a partner will be computed and in subsections (a) and (b) it states that his distributive share of the capital gains and losses of the partnership (whether short-term or long-term) will be included as part of his gains and losses from the sale or exchange of capital assets. It is only in subsection (c) that it is stated that the partner’s distributive share of the ordinary net income will be as computed by the partnership as such, or in the language of the statute as computed in section 183 (b). When we turn to section 183 (b) we find that (b) (1) provides that in computing the net income of a partnership “There shall be segregated the gains and losses from sales or exchanges of capital assets,” and subsection (b) (2) provides that ordinary net income or loss will be determined “After excluding all items of gai-n and loss from sales or exchanges of capital assets.” This separate and distinct treatment of partnership capital gains and losses is further expressed in the offsetting of capital losses. The extent to which capital losses of a partnership are allowed to the individual partner is not limited by the capital gains of a partnership, but by his share of the capital gains plus the net income of the individual partner, or $1,000, whichever is smaller. See section 117 (d). It is thus seen that as now provided capital gains and losses of a partnership are segregated and excluded from the computation of the ordinary net income of a partnership. The capital gains do not become a part of that income, but instead are listed in the partnership return for information purposes and enter directly into the income of the individual partners. In these circumstances, I think it is only reasonable that the individual partner determine" }, { "docid": "4723777", "title": "", "text": "is well settled that a mortgagee who forecloses on property cannot deduct real estate taxes which have accrued thereon prior to the date of purchase; payments for such taxes are considered capital expenditures to be added to the cost of the property. Estate of Schieffelin v. Commissioner, 44 B.T.A. 137, 140 (1941). See also Hyde v. Commissioner, 64 T.C. 300, 306 (1975). Consequently, respondent properly disallowed petitioners’ claimed deductions for real estate taxes and interest which accrued on the property prior to its acquisition by petitioners. To reflect the foregoing, Decision will be entered for the respondent. A11 statutory references are to the Internal Revenue Code of 1954 as amended and in effect for the years in issue. At the time the partnership retained Leslie Carson, he was not employed by HUD or any other Government agency. Since Casel Agency, Inc., wasi a cash basis taxpayer, it did not include the unpaid management fees in income for 1974 or 1975. These fees were not paid by the partnership during 1974 or 1975, nor were they paid within 2% months of the close of each respective year. Using essentially identical language to sec. 267(b)(2), sec. 24(b)(1)(B), 1939 Code, provides, in pertinent part, the following: SEC. 24. ITEMS NOT DEDUCTIBLE. (b) Losses from Sales or Exchanges of Property.— (1)Losses disallowed. — In computing net income no deduction shall in any case be allowed in respect of losses from sales or exchanges of property, directly or indirectly— (B) Except in the case of distributions in liquidation, between an individual and a corporation more than 50 per centum in value of the outstanding stock of which is owned, directly or indirectly, by or for such individual; We further note that sec. 24(c), 1939 Code, provides, in language very similar to that appearing in sec. 267(a)(2), as follows: SEC. 24(c). Unpaid Expenses and Interest. — In computing net income no deduction shall be allowed under section 23(a) [predecessor provision of sec. 162], relating to expenses incurred, or under section 23(b) [predecessor provision of sec. 163], relating to interest accrued— (1) If such expenses or interest" }, { "docid": "17441660", "title": "", "text": "deduction of the loss he sustained upon withdrawal from the partnership is precluded by section 24 (b) (1) (A) of the Internal Revenue Code. Both the petitioner and the respondent have agreed that the transaction between Louis and Nathan amounted to a sale of property; and, since it was a sale between brothers, it would seem to fall squarely within the provisions of that section of the code. Petitioner’s contention is that the statute does not apply to a bona fide sale of a partnership interest, notwithstanding it is between brothers. He admits that the scope of the provision is very broad and that he can find no ruling or decision to sustain his position. He states, however, that the history of the provision, which first appeared in the Revenue Act of 1934, shows that its enactment was brought about because of many family transactions which were sham and for the sole purpose of suffering losses for tax purposes, and he suggests that if the statute is applicable to a bona fide sale of a partnership interest, it works such a hardship as to challenge its soundness. Undoubtedly Congress, in enacting the provision in question, was motivated by a desire to prevent intrafamily transactions in property for the sole purpose of sustaining “unreal” losses to be deducted for tax purposes. Almost every reference to the measure in the Committee reports and in debate on the floor of the House and the Senate commented on the fact that many “shocking” instances of such transactions had come to light, and that they constituted a major source of tax avoidance. Committee members in charge of the measure stated their belief that it would “effectively close this loophole.” Nevertheless, the language chosen by Congress to accomplish its purposes was that “no deduction shall in any case be allowed in respect of losses from sales or exchanges of property, directly or indirectly, * * * between members of a family.” (Italics ours.) That language is so broad as to admit of no exception. It is true that a hardship may result in particular cases, as" } ]

[ { "docid": "21384042", "title": "", "text": "counsel for appellant requested that the jury be allowed to visit the premises-where the offense occurred. Its refusal to-grant the request is assigned as error. But whether or not a jury shall be permitted to- view the premises is discretionary with the court. The record in the present case does not disclose abuse of this discretion. We are inclined to think the request for a view was more or less an afterthought and “has taken on an enlarged importance since the trial, owing possibly to the exigencies of the appeal.” The trial judge refused to give a prayer requested by appellant concerning reputation, upon the ground that the subject had been covered in the charge already given to the jury. The record reveals that the instruction given, satisfied the requirements of Egan v. United States, upon which appellant relies. The complete charge of the court to the jury was not included in the record on appeal. Except as to the instruction on reputation no exception was taken to the charge as given. A careful examination of such parts of the instructions given as do appear in the record satisfies us that the prayers requested by appellant and denied by the court were fully and adequately covered. For all these reasons the contentions of appellant cannot be sustained. Affirmed. Witters v. United States, 70 App.D. C. 316, 318, 106 F.2d 837, 839, 125 A. L.R. 1031. 2 Wigmore, Evidence (3d ed. 1940) §§ 398, 399, 400. Weaver v. United States, 55 App.D. C. 26, 29, 299 F. 893, 897 (carnal knowledge); Ohio v. Reineke, 89 Ohio St. 390, 106 N.E. 52, L.R.A.1915A, 138; State v. Seymour, 57 Nev. 35, 40, 57 P.2d 390, 392; Commonwealth v. Bell, 166 Pa. 405, 31 A. 123 (all incest); Note, 62 L. R.A. 193, 329. See Thayer v. Thayer, 101 Mass. 111, 100 Am.Dec. 110 (adultery). Neufield v. United States, 73 App.D. C. 174, 187, 118 F.2d 375, 388; Note, 42 L.R.A. 368; 4 Wigmore, Evidence (3d ed. 1940) § 1164. Louie Hung v. United States, 9 Cir., 111 F.2d 325, 326. 52 App.D.C. 384," } ]

[ { "docid": "5348473", "title": "", "text": "S.Ct. 213; United States v. Fox, supra note 14, 473 F.2d 131. . Michelson v. United States, supra note 13, 335 U.S. at 475-476, 69 S.Ct. 213; United States v. Fox, supra note 14, 473 F.2d 131; Awkard v. United States, supra note 16, 122 U.S.App.D.C. at 167, 352 F.2d at 643; Josey v. United States, 77 U.S.App.D.C. 321, 323, 135 F.2d 809, 811 (1943). As is well known, there are exceptions where evidence indicating the commission of other offenses is independently admissible to establish an element of the offense on trial. See generally McCormick, Evidence §§ 154, 157 (1954); 1 Wigmore, Evidence §§ 70-81, id. §§ 300-70 (3d ed. 1940). . Josey v. United States, supra note 20, 77 U.S.App.D.C. at 323, 135 F.2d at 811; Crawford v. United States, 59 App.D.C. 356, 358, 41 F.2d 979, 981 (1930); McCormick, Evidence § 157, at 327 (1954) ; 1 Wigmore, Evidence § 57 (3d ed. 1940). . See Stewart v. United States, supra note 16; McCormick, Evidence § 158, at 337 (1954). But see Proposed Fed.R.Evid. 405(a). . United States v. Fox, supra note 14, 473 F.2d 131. See also eases cited supra note 21. . See the numerous cases collected in Annots., 71 A.L.R. 1504 (1931), 47 A.L.R.2d 1258 (1956); 3A Wigmore, Evidence § 988, at 913-20 n. 1 (Chadbourn ed. 1970). A few jurisdictions subscribe to the contrary rule. See McCormick, Evidence § 158, at 335 n. 14 (1954). The decisions in this circuit are collected in note 27, infra. . Awkard v. United States, supra note 16, 122 U.S.App.D.C. at 167, 352 F.2d at 643; Shimon v. United States, supra note 13, 122 U.S.App.D.C. at 156, 352 F.2d at 453; Stewart v. United States, supra note 16, 70 App.D.C. at 101, 102, 104 F.2d at 235, 236; Clark v. United States, 57 App.D.C. 335, 336, 23 F.2d 756, 757 (1927). . See Michelson v. United States, supra note 13, 335 U.S. at 472-473, 69 S.Ct. 213 n. 3; Coleman v. United States, 137 U.S.App.D.C. 48, 54, 420 F.2d 616, 622 (1969); Awkard v. United States, supra note" }, { "docid": "23000831", "title": "", "text": "building for a local newspaper. Although television was a new enterprise for the newspaper, it previously had operated a radio station. The court, in applying the Fair Labor Standards Act to the construction, stated that the prior existence of the radio station removed it from “any status of naked ‘new’ construction for an activity not yet in being.” 238 F.2d at page 384. See also United States v. Newjer Contracting Co., D.C.D.N.J.1958, 161 F.Supp. 867, in which the court held that employees of a construction company engaged in construction work on a super highway which when completed would facilitate the flow of traffic to other states were within the Fair Labor Standards Act. . The following articles contain a careful consideration of the problems in this area. Stone, The Rule of Exclusion of Similar Pact Evidence: England, 46 Harv.L.Rev. 954 (1933); Stone, The Rule of Exclusion of Similar Pact Evidence : America, 51 Harv.L.Rev. 988 (1938). . “It is hopeless to attempt to reconcile the precedents under the various heads; for too much depends on the tendency of the Court in dealing with a flexible principle.” 2 Wigmore, Evidence § 302 at 201 (3d ed. 1940). . McCormick, Evidence § 127 at 328-31 (1954). See Note, 29 Mich.L.Rev. 473 (1931). . Id. at 327. . Even this general statement must be qualified in prosecutions for sex offenses. A number of jurisdictions admit evidence of other similar offenses where offered to prove propensity for illicit sexual relations with a particular person. E. g., Hodge v. United States, 1942, 75 U.S.App.D.C. 332, 126 F.2d 849 (incest); State v. Terry, 1925, 199 Iowa 1221, 203 N.W. 232 (incest); Sykes v. State, 1904, 112 Tenn. 572, 82 S.W. 185 (statutory rape). An extensive annotation on the subject is contained in 167 A.L.R. 565. A few decisions have admitted evidence of sex crimes with persons other than the particular person involved in the crime on trial. Compare Fairbanks v. United States, 1955, 96 U.S.App.D.C. 345, 226 F.2d 251, with Commonwealth v. Kline, 1949, 361 Pa. 434, 65 A.2d 348. . Milton, Paradise Lost, Bk. I," }, { "docid": "22409656", "title": "", "text": "general rule in criminal cases is well settled, that the commission of other, though similar offenses by the defendant, can not be proved for the purpose of showing that he was more likely to have committed the offense for which he is on trial---- But the courts in several of the States have shown a disposition to relax the rule in cases where the offense consists of illicit intercourse between the sexes. People v. Jenness, 5 Mich. 305, 319-20 (Mich.1858) (quoted in Thomas J. Reed, Reading Gaol Revisited: Admission of Uncharged Misconduct Evidence in Sex Offender Cases, 21 Am. J.Crim. L. 127, 167 n. 223 (1993)). In the nineteenth and early twentieth centuries, some states developed a “lustful disposition” rule, allowing evidence of sexual acts other than the one charged in order to prove the defendant’s disposition to commit a sex crime. See generally 2 John H. Wigmore, Wigmore on Evidence §§ 398-402 (Tillers rev.1983); Admissibility, in Prosecution for Sexual Offense, of Evidence of Other Similar Offenses, 167 A.L.R. 565 (1947). Many of the cases in this area of the law concern sexual offenses against children. By the early 1920’s, twenty-three states had a “lustful disposition” exception applicable to cases of statutory rape. See Reed, 21 Am. J.Crim. L. at 171. Today, an even greater number of states retain the “lustful disposition” rule in cases involving sex offenses, including cases of child molestation. Id. at 188. Thus, the history of evidentiary rules regarding a criminal defendant’s sexual propensities is ambiguous at best, particularly with regard to sexual abuse of children. The existence of this ambiguity does not leave us uncertain of the constitutional result, however; rather, it favors the government. As the Supreme Court stated in Egelhojf, “It is not the [government] which bears the burden of demonstrating that its rule is ‘deeply rooted,’ but rather [the defendant] who must show that the principle of procedure violated by the rule (and allegedly required by due process) is ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Egelhoff, 518 U.S. at 47, 116" }, { "docid": "22130660", "title": "", "text": "clear that the general ban on propensity evidence has the requisite historical pedigree to qualify for constitutional status. See, e.g., McKinney v. Rees, 993 F.2d 1378, 1384-85 (9th Cir.1993) (holding in the context of a murder prosecution that “[t]he character rule is based on ... a ‘fundamental conception of justice’ and the ‘community’s sense of fair play and decency’ ”); Old Chief v. United States, 519 U.S. 172, 182, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (stating in dicta that “[t]here is ... no question that propensity would be an ‘improper basis’ for conviction”); Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 93 L.Ed. 168 (1948) (noting in dicta that “[c]ourts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt”). On the other hand, courts have routinely allowed propensity evidence in sex-offense cases, even while disallowing it in other criminal prosecutions. In many American jurisdictions, evidence of a defendant’s pri- or acts of sexual misconduct is^ commonly admitted in prosecutions for offenses such as rape, incest, adultery, and child molestation. See, e.g., 2 JOHN H. WIGMORE, WIGMORE ON EVIDENCE, §§ 398-402. As early as 1858, the Michigan Supreme Court noted that “courts in several of the States have shown a disposition to relax the rule [against propensity evidence] in cases where the offense consists of illicit intercourse between the sexes.” People v. Jenness, 5 Mich. 305, 319-20, 1858 WL 2321 at *8 (Mich.1858). Today, state courts that do not have evidentiary rules comparable to Federal Rules 414 through 415 allow this evidence either by stretching traditional 404(b) exceptions to the ban on character evidence or by resorting to the so-called “lustful disposition” exception, which, in its purest form, is a rule allowing for propensity inferences in sex crime cases. See, e.g., Thomas J. Reed, Reading Gaol Revisited: Admission of Uncharged Misconduct Evidence in Sex Offender Cases, 21 AM. J. CRIM. L. 127, 188 (1993). Thus, “the history of eviden-tiary rules regarding a criminal defendant’s" }, { "docid": "23000832", "title": "", "text": "the tendency of the Court in dealing with a flexible principle.” 2 Wigmore, Evidence § 302 at 201 (3d ed. 1940). . McCormick, Evidence § 127 at 328-31 (1954). See Note, 29 Mich.L.Rev. 473 (1931). . Id. at 327. . Even this general statement must be qualified in prosecutions for sex offenses. A number of jurisdictions admit evidence of other similar offenses where offered to prove propensity for illicit sexual relations with a particular person. E. g., Hodge v. United States, 1942, 75 U.S.App.D.C. 332, 126 F.2d 849 (incest); State v. Terry, 1925, 199 Iowa 1221, 203 N.W. 232 (incest); Sykes v. State, 1904, 112 Tenn. 572, 82 S.W. 185 (statutory rape). An extensive annotation on the subject is contained in 167 A.L.R. 565. A few decisions have admitted evidence of sex crimes with persons other than the particular person involved in the crime on trial. Compare Fairbanks v. United States, 1955, 96 U.S.App.D.C. 345, 226 F.2d 251, with Commonwealth v. Kline, 1949, 361 Pa. 434, 65 A.2d 348. . Milton, Paradise Lost, Bk. I, 1. 668. HASTIE, Circuit Judge (dissenting). One of the principal questions in this case is whether the court below erred in charging the jury as follows: “Or if you are satisfied beyond a reasonable doubt that Mr. Rider’s concrete was used for constructing a mill which would manufacture articles of steel to be shipped in interstate commerce and if you also believe that the defendant extorted money from Mr. Rider, you are instructed as a matter of law that there has been a substantial effect on interstate commerce shown by the United States. In other words, if you find the facts to be as the Government contends, interstate commerce has been affected, obstructed and delayed.” Stating the issue thus raised this court asks: “Is an interference with a man who is furnishing material for a mill which, when completed, will manufacture products which, if successfully marketed, will be shipped out of the state close enough to interstate commerce to be made a federal offense?” To this question the majority give an affirmative answer. I regret" }, { "docid": "14373665", "title": "", "text": "gone beyond attempt. The offer to bribe the arresting officers is but a suspicious circumstance pointing to possible guilt of some offense, but not of any particular offense. Forte v. United States, supra. Admission of defendant Washington's confession of prior acts between the same parties was allowed under the well-established exception to the rule that evidence of other offenses is generally inadmissible, but is admitted in cases involving sex offenses in order to show mental disposition or passion. Bracey v. United States, 1944, 79 U.S. App.D.C. 23, 142 F.2d 85, certiorari denied 332 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589; Hodge v. United States, 1942, 75 U.S.App.D.C. 332, 126 F.2d 849; Dyson v. United States, D.C.Mun.App.1953, 97 A.2d 135. Such evidence is consistent with the hypothesis that the act of sodomy was not consummated. Defendants’ motion for a new trial accordingly will be granted. Since the question will arise at a second trial, it appears appropriate at this time to determine whether statements that “I’ll tell my story to my lawyer” and “I have nothing to say at this time,” made by defendant Kelly to police officers while under arrest when defendant Washington’s confession was read to him, may be considered an admission against Kelly of the truth of what was said. Where accusatory statements are made in defendant’s presence or hearing, his silence may make admissible both the statements and his failure to deny them, whether occurring immediately following commission of the crime, McUin v. United States, 1900, 17 App.D.C. 323, or in the presence of police officers at the scene, Harrod v. United States, 1928, 58 App.D.C. 254, 29 F.2d 454, or at police headquarters, Dickerson v. United States, 1933, 62 App.D.C. 191, 65 F.2d 824, certiorari denied 290 U.S. 665, 54 S.Ct. 89, 78 L.Ed. 575. Similarly, not only silence but also an evasive answer or one unresponsive to the statement may be the basis for an inference of acquiescence. Examples are collected in 2 Wharton’s Criminal Evidence, 11th Ed., § 657; Note, 115 A.L.R. 1510; Note, 80 A.L.R. 1236. Where the accusatory statement is unequivocally" }, { "docid": "23693285", "title": "", "text": "61 N.E. 286 (1901) (a leading American decision discussing the exceptions). See generally 2 J. Wigmore, Evidence §§ 300 et seq. (3d ed. 1940); McCormick, Evidence § 157 (1954); Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 988 (1938). The exceptions, when properly applied, are justified by a legitimate need for the evidence that outweighs the perils of undue prejudice to the accused. In reaching this accommodation, the law naturally seeks to shield the accused from unnecessary prejudice. Accordingly, the admission of evidence of a defendant’s prior acts of bad conduct, under the specified exceptions, requires limiting instructions cautioning the jury not to consider the evidence for improper purposes. United States v. Nemeth, supra; United States v. Sims, 430 F.2d 1089, 1092 (6th Cir. 1970). The mere recitation by the prosecution that evidence of the accused’s bad acts is offered under an ex ception is not sufficient for its admission. In United States v. Birns, 395 F.2d 943 (1968), for example, we considered whether evidence that the accused had been previously convicted for income tax fraud was admissible in a prosecution for perjury under the exceptions “to show intent, design, scheme, motive, or knowledge on the part of the defendant.” 395 F.2d at 945. We held the evidence inadmissible because the prior tax fraud convictions had “no logical tendency” to establish that the defendant had committed perjury and were only prejudicial. To show “intent” with evidence of other misconduct, there must be a substantial similarity between the offenses charged in the indictment and the prior misconduct. United States v. Birns, supra; United States v. Kasouris, 474 F.2d 689 (5th Cir. 1973); United States v. Johnson, 453 F.2d 1195 (5th Cir. 1972). See generally 2 J. Wigmore, Evidence § 302, at p. 200 (3d ed. 1940). We have also held that “to show a consistent pattern of conduct relating to the offense charged the evidence must be of prior similar acts reasonably near in time to the offense charged.” United States v. Nemeth, 430 F.2d 704, 705 (1970). And, evidence of prior misconduct may not be admitted" }, { "docid": "22695692", "title": "", "text": "Wigmore, Evidence §§ 192-94 (3d ed. 1940); McCormick, Evidence § 157; 1 Underhill, Criminal Evidence §§ 205-12 (5th ed. 1956); Uniform Rule of Evidence 55; People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193 (1901). Perhaps the leading authority in this jurisdiction is the concurring opinion of Judge Stephens in Martin v. United States, 75 U.S.App.D.C. 399, 401, 127 F.2d 865, 867 (1942). See also Fairbanks v. United States, 96 U.S.App.D.C. 345, 226 F.2d 251 (1955); Pyle v. United States, 81 U.S.App.D.C. 209, 156 F.2d 852 (1946); Bracey v. United States, 79 U.S.App.D.C. 23, 142 F.2d 85, cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944); cf. Hansford v. United States, 112 U.S.App.D.C. 359, 303 F.2d 219 (1962). In Boyer v. United States, 76 U.S.App.D.C. 397, 132 F.2d 12 (1942), reversing tbe conviction, this court said: “No doubt the alleged fact that a man committed a crime on another occasion tends to show a disposition to commit similar crimes. But when the prior crime has no other relevance than that, it is inadmissible. Its tendency to create hostility, surprise, and confusion of issues is thought to outweigh its probative value. The law seeks ‘a convenient balance between the necessity of obtaining proof and the danger of unfair prejudice.’ ” Admissibility of other crimes evidence for purposes other than proof of disposition is treated below. . Underhill, in discussing the admissibility of evidence of other crimes, states that “The large majority of persons of average intelligence are untrained in logical methods of thinking, and are therefore prone to draw illogical and incorrect inferences, and conclusions without adequate foundation. From such persons jurors are selected. They will very naturally believe that a person is guilty of the crime with which he is charged if it is proved to their satisfaction that he has committed a similar offense, or any offense of an equally heinous character. And it cannot be said with truth that this tendency is wholly without reason or justification, as every person can bear testimony from his or her experience that a man who" }, { "docid": "11501667", "title": "", "text": "404 is confirmed not only by the Advisory Committee’s notes, see Communication, supra note 38, at 68, but also by the Senate Report, quoted in pertinent part supra note 38. . 21 U.S.C. § 841(a) (1970) provides that, with exceptions not relevant here, it is unlawful “for any person knowingly or intentionally — (1) to possess with intent to manufacture, distribute, or dispense a controlled substance . ,” such as heroin. . See, e. g., Brooke v. United States, 128 U.S. App.D.C. 19, 24-25, 385 F.2d 279, 284-285 (1967). So the trial judge instructed the jury here. Tr. IV/68-70. See also Direct Sales Co. v. United States, 319 U.S. 703, 710-712, 63 S.Ct. 1265, 1269-1270, 87 L.Ed. 1674, 1681— 1682 (1943). . See Stone, The Rule of Exclusion of Similar Facts Evidence: America, 51 Harv.L.Rev. 988, 1026 n. 190 (1938). Facta probanda stand in contrast with facta probantia — “probative facts” — such as motive, from which inferences regarding facts in issue may be drawn. . Cf. 2 J. Weinstein & M. Berger, Evidence ¶ 404[10] at 67 n. 4 (1975), citing C. McCormick, Evidence § 157 at 331 (1954) (“the customary principle that [prior crimes] evidence may not be introduced on issues which are not contested”). This principle has been espoused by nearly all of the courts of appeals. E. g., Bradley v. United States, supra note 41, 140 U.S.App.D.C. at 13-14, 433 F.2d at 1119-1120, citing Billings v. United States, 42 App.D.C. 413, 415 (1914); United States v. Brettholz, 485 F.2d 483, 487 (2d Cir. 1973), cert, denied, 415 U.S. 976, 94 S.Ct. 1561, 39 L.Ed.2d 871 (1974), citing C. McCormick, Evidence § 190 at 453 (Cleary ed. 1972); United States v. Cook, 538 F.2d 1000, 1003 (3d Cir. 1976); Lovely v. United States, 169 F.2d 386, 388 (4th Cir. 1948); United States v. Bloom, 538 F.2d 704, 711 (5th Cir. 1976) (Tuttle and Clark, JJ., concurring), citing United States v. Goodwin, 492 F.2d 1141, 1150-1151 (5th Cir. 1974); United States v. Mahar, 519 F.2d 1272, 1273 (6th Cir.), cert, denied, 423 U.S. 1020, 96 S.Ct. 458, 46" }, { "docid": "3363651", "title": "", "text": "testimony about defendant’s alleged involvement in other bank robberies, and we cannot say that its admission was harmless error within the meaning of Federal Rule of Criminal Procedure 52(a). We need not decide whether a limiting instruction would render the error harmless for here, as in United States v. Yopp, a similar admonition concerning other crimes evidence was “sought, promised but not delivered.” We found there that the omission was error requiring reversal of defendant’s conviction even though the challenged evidence was admissible. Here the evidence was inadmissible and there was no limiting instruction which might reduce its prejudicial effect. Accordingly, the judgment of the District Court is reversed and the case is remanded for a new trial. . Fed.R.Evid. 402. . For a full discussion of the history and development of the common law rule on the admissibility of evidence of other crimes, see Slough & Knightly, Other Vices, Other Crimes, 41 Iowa L.Rev. 325 (1956); Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 988 (1938). See also Payne, The Law Whose Life is not Logic: Evidence of Other Crimes in Criminal Cases, 3 U. Richmond L.Rev. 62 (1968); Comment, Rule 404(b) Other Crimes Evidence: The Need for a Two-Step Analysis, 71 Nw. U.L.Rev. 634 (1976); Comment, Other Crimes Evidence at Trial: Of Balancing and Other Matters, 70 Yale L.J. 763 (1961). . McCormick, Evidence § 157 at 328 (1954). See 2 Weinstein ¶ 404[09] (1979); 2 Wigmore § 304 (3d ed. 1940). . 2 Wigmore, Evidence § 411 at 385 (3d ed. 1940) (“In the process of identification of two supposed objects by a common mark, the force of the inference depends on the degree of the necessariness of association of that mark with a single object.”) . Cf. United States v. Jacobson, 578 F.2d 863 (10th Cir. 1978), cert. denied, 439 U.S. 932, 99 S.Ct. 324, 58 L.Ed.2d 327 (1978); United States v. Holladay, 566 F.2d 1018 (5th Cir. 1978, cert. denied, 439 US. 831, 99 S.Ct. 108, 58 L.Ed.2d 125 (1978). . “Any error, defect, irregularity or variance which does not affect" }, { "docid": "23000830", "title": "", "text": "in this department. As Judge Hand pointed out a number of years ago, Di Carlo v. United States, 2 Cir., 1925, 6 F.2d 364, 368, the prosecuting attorney may not be shorn “of all oratorical emphasis.” There is mention in the brief, though not an oral argument, of a complaint based on the circulation of a pamphlet for jurors. As pointed out by the trial judge, this objection was not timely made and need not be considered. There is, likewise, a complaint about the use of subpoenas by the Government. We find this trivial. The judgment of the district court will be affirmed. . IS U.S.C. § 1951(a) (1951). . 18 U.S.C. § 1951(b) (2) (3951). . See 18 U.S.C. § 1951(b) (3) (1951). “The term ‘commerce’ means * * * and all other commerce over which the United States has jurisdiction.” . In Mitchell v. Hodges Contracting Co., 1956, 238 F.2d 380, the Fifth Circuit brought within the ambit of the Fair Labor Standards Act employees engaged in the construction of a new radio-television building for a local newspaper. Although television was a new enterprise for the newspaper, it previously had operated a radio station. The court, in applying the Fair Labor Standards Act to the construction, stated that the prior existence of the radio station removed it from “any status of naked ‘new’ construction for an activity not yet in being.” 238 F.2d at page 384. See also United States v. Newjer Contracting Co., D.C.D.N.J.1958, 161 F.Supp. 867, in which the court held that employees of a construction company engaged in construction work on a super highway which when completed would facilitate the flow of traffic to other states were within the Fair Labor Standards Act. . The following articles contain a careful consideration of the problems in this area. Stone, The Rule of Exclusion of Similar Pact Evidence: England, 46 Harv.L.Rev. 954 (1933); Stone, The Rule of Exclusion of Similar Pact Evidence : America, 51 Harv.L.Rev. 988 (1938). . “It is hopeless to attempt to reconcile the precedents under the various heads; for too much depends on" }, { "docid": "13951054", "title": "", "text": "States, 113 U.S.App.D.C. 136, 140, 306 F.2d 743, 747 (1962) (emphasis in original). See also Pendergrast v. United States, 135 U.S.App.D.C. 20, 32 n.72, 416 F.2d 776, 788 n.72, cert. denied, 395 U.S. 926, 89 S.Ct. 1782, 23 L.Ed.2d 243 (1969). . 9 J. Wigmore, Evidence §§ 2490-2491 (3d ed. 1940); C. McCormick, Evidence § 342 (2d ed. 1972). . See cases cited supra notes 21-23. . 9 J. Wigmore, Evidence §§ 2491, 2519 (3d ed. 1940). See also cases cited supra note 23 and authorities cited infra notes 34-37. . See note 24 supra. . 9 J. Wigmore, Evidence § 2491 at 289 (3d ed. 1940). . Stumpf v. Montgomery, 101 Okl. 257, 226 P. 65, 69, 32 A.L.R. 1490 (1924), quoting Mackowik v. Kansas City, St. J. & C.B.R.R., 196 Mo. 550, 94 S.W. 256, 262 (1906). . See, e. g., C. McCormick, Evidence § 345 at 821-826 (2d ed. 1972). . See, e. g., Morgan & McGuire, Looking Backward and Forward at Evidence, 50 Harv.L. Rev. 909, 913 (1937); Morgan, Instructing the Jury Upon Presumptions and Burden of Proof, 47 Harv.L.Rev. 59, 82-83 (1933); Gausewitz, Presumptions in a One-Rule World, 5 Vand.L.Rev. 324 (1952). Contra, Laughlin, In Support of the Thayer Theory of Presumptions, 52 Mich.L.Rev. 195 (1953). See also the discussion in C. McCormick, Evidence § 345 at 821-829 (2d ed. 1972). . See cases cited supra note 23 and additional cases collected at 9 J. Wigmore, Evidence §§ 2419 at 290-292 n.6, 2519 at 431-432 n.2 (3d ed. 1940), Supp.1975 at 102-108, 197-198. . New York Life Ins. Co. v. Gamer, 303 U.S. 161, 170, 171, 58 S.Ct. 500, 503, 82 L.Ed. 726, 730, 731 (1938) (presumption of death by accident rather than by suicide “is not evidence and ceases upon the introduction of substantial proof to the contrary. . . . The presumption is not evidence and may not be given weight as evidence.”); Del Vecchio v. Bowers, 296 U.S. 280, 286-287, 56 S.Ct. 190, 193, 80 L.Ed. 229, 233 (1935) (as to statute presuming, in absence of contrary evidence, that injury to employee" }, { "docid": "22717280", "title": "", "text": "all cases. Lane v. Warden, 320 F. 2d 179. The Fifth Circuit in Breen v. Beto, 341 F. 2d 96, and again in the Reed case before us today, 343 F. 2d 723, and the Eighth Circuit in Wolfe v. Nash, 313 F. 2d 393, have held such procedures constitutional. The Ninth Circuit in Powell v. United States, 35 F. 2d 941, sustained the procedure in the context of a second offense under § 29 of the National Prohibition Act, 41 Stat. 316. See annotations at 58 A. L. R. 20, 82 A. L. R. 345, 79 A. L. R. 2d 826; Note, Recidivist Procedures, 40 N. Y. U. L. Rev. 332 (1965). These Texas cases reflect the rules prevailing in nearly all common-law jurisdictions. See generally McCormick, Evidence §§ 157-158 (1954); 1 Wharton’s Criminal Evidence §§221-243 (Anderson ed. 1955); 1 Wigmore, Evidence §§ 215-218 (3d ed. 1940 and 1964 Supp.); Note, Other Crimes Evidence at Trial, 70 Yale L. J. 763 (1961). For the English rules, substantially similar, see Cross, Evidence 292-333 (2d ed. 1963). Recent commentators have criticized the rule of general exclusion, and have suggested a broader range of admissibility. Model Code of Evidence, Rule 311; Carter, The Admissibility of Evidence of Similar Facts, 69 L. Q. Rev. 80 (1953), 70 L. Q. Rev. 214 (1954); Note, Procedural Protections of the Criminal Defendant, 78 Harv. L. Rev. 426, 435-451 (1964). For the use of this type of evidence in continental jurisdictions, see Glanville Williams, The Proof of Guilt 181 (2d ed. 1958); 1 Wigmore, supra, § 193. Indeed the most recent scholarly study of jury behavior does not sustain the premise that juries are especially prone to prejudice when prior-crime evidence is admitted as to credibility. Kalven & Zeisel, The American Jury (1966). The study contrasts the effect of such evidence on judges and juries and concludes that “Neither the one nor the other can be said to be distinctively gullible or skeptical.” Id., at 180. See “Careers in Crime,” a statistical survey collected in Uniform Crime Reports for the United States — 1965, p. 27 (Dept," }, { "docid": "22409655", "title": "", "text": "reasons, we conclude that Rule 414 falls outside that narrow category. First, “[o]ur primary guide in determining whether the principle in question is fundamental is, of course, historical practice.” Montana v. Egelhoff, 518 U.S. 37, 41-44, 116 S.Ct. 2013, 2017, 135 L.Ed.2d 361 (1996). The ban on propensity evidence dates back to English cases of the seventeenth century. See Hampden’s Trial, 9 How. St. Tr. 1053, 1103 (K.B.1684). In addition, courts in the United States have enforced the ban throughout our nation’s history, see, e.g., Boyd v. United States, 142 U.S. 450, 458, 12 S.Ct. 292, 295, 35 L.Ed. 1077 (1892), and we assume for purposes of this case, without deciding the matter, that because of the ban’s lineage and significance in our jurisprudence, it is a protection that the Due Process Clause guarantees. Nonetheless, the historical record regarding evidence of one’s sexual character is much more ambiguous. More than a century ago, courts regularly admitted a defendant’s prior acts as proof of the crime of incest. For example, the Michigan Supreme Court said: The general rule in criminal cases is well settled, that the commission of other, though similar offenses by the defendant, can not be proved for the purpose of showing that he was more likely to have committed the offense for which he is on trial---- But the courts in several of the States have shown a disposition to relax the rule in cases where the offense consists of illicit intercourse between the sexes. People v. Jenness, 5 Mich. 305, 319-20 (Mich.1858) (quoted in Thomas J. Reed, Reading Gaol Revisited: Admission of Uncharged Misconduct Evidence in Sex Offender Cases, 21 Am. J.Crim. L. 127, 167 n. 223 (1993)). In the nineteenth and early twentieth centuries, some states developed a “lustful disposition” rule, allowing evidence of sexual acts other than the one charged in order to prove the defendant’s disposition to commit a sex crime. See generally 2 John H. Wigmore, Wigmore on Evidence §§ 398-402 (Tillers rev.1983); Admissibility, in Prosecution for Sexual Offense, of Evidence of Other Similar Offenses, 167 A.L.R. 565 (1947). Many of the cases" }, { "docid": "23693304", "title": "", "text": "or designating mark subscribed thereto, addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another, shall be fined not more than $1,000.00 or imprisoned not more than five years, or both. . Compare United States v. Woods, 484 F.2d 127 (4th Cir. 1973), holding that evidence of prior misconduct in that case was admissible under a specified exception, but stating, in dictum, that the decision rested on the broader proposition, often advanced by commentators, that “evidence of other offenses may be received, if relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime.” 484 F.2d at 134. See generally McCormick, Evidence § 157, supra at p. 332. We are not called upon in this appeal to determine whether the categorical exceptions stated in our opinion above are exhaustive of the situations when evidence of prior bad acts may properly be admitted. See generally Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 998 (1938); Note, Developments in Evidence of Other Crimes, 7 U.Mich.J.L.Ref. 535 (1974). . McCormick cites as illustrating this principle the following statement from State v. Goebel, 36 Wash.2d 367, 218 P.2d 300, 306, syl. 5 (1950) (Hill, J.): . [T]his class of evidence, where not essential to the establishment of the state’s case, should not be admitted, even though falling within the generally recognized exceptions to the rule of exclusion, when the trial court is convinced that its effect would be to generate heat instead of diffusing light, or, . where the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it. This is a situation where the policy of protecting a defendant from undue prejudice conflicts with the rule of logical relevance, and a proper determination as to which should prevail rests on the sound discretion of the trial court, and not merely on whether the evidence comes within certain categories which constitute exceptions to the rule of exclusion." }, { "docid": "8663120", "title": "", "text": "853, 86 S.Ct. 102, 15 L.Ed.2d 91 (1965). The indictment there contained 27 counts, of which the Government dismissed six at the start of trial and another six at the close of its case, and the jury convicted on the remaining fifteen. We affirmed the conviction in toto. . E. g., Freeman v. United States, 116 U.S.App.D.C. 213, 214, 322 F.2d 426, 427 (1963); Fairbanks v. United States, 96 U.S.App.D.C. 345, 347, 226 F.2d 251, 253 (1955). . Drew v. United States, supra note 51, 118 U.S.App.D.C. at 16, 331 F.2d at 90. . “Evidence of other crimes is admissible when relevant to (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial.” Drew v. United States, supra note 51, 118 U.S.App.D.C. at 16, 331 F.2d at 90. . Bradley v. United States, supra note 51, 140 U.S.App.D.C. at 13-14, 433 F.2d at 1119-1120; Eagles v. United States, 58 App.D.C. 122, 124, 25 F.2d 546, 548, cert. denied, 277 U.S. 609, 48 S.Ct. 603, 72 L.Ed. 1013 (1928). See also Drew v. United States, supra note 51, 118 U.S. App.D.C. at 16, 331 F.2d at 90, quoted supra note 63; Bracey v. United States, 79 U.S.App.D.C. 23, 27-28, 142 F.2d 85, 88-89, cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944). Cf. Martin v. United States, 75 U.S.App.D.C. 399, 400, 127 F.2d 865, 866 (1942). See also cases collected in 2 ,T. Wigmore, Evidence § 416 (3d ed. 1940). . Other decisions admitting in narcotics prosecutions evidence of other drug offenses include United States v. Smith, 343 F.2d 607, 609 (2d Cir. 1965); People v. Lewis, 208 Cal.App.2d 422, 25 Cal. Rptr. 298, 300 (1962); People v. Cervantes, 177 Cal.App.2d 187, 2 Cal.Rptr. 107, 108-109 (1960); People v. Cole, 29 Ill.2d 501, 194 N.E.2d 269, 271 (1963); People v. Lopez, 10" }, { "docid": "946107", "title": "", "text": "of a defendant’s prior miscon duct to show motive, intent, absence of mistake or inadvertence, identity of the offender or a common plan, pattern or scheme. United States v. Nemeth, 430 F.2d 704 (6th Cir. 1970); United States v. Wells, 431 F.2d 432 (6th Cir. 1970); United States v. Birns, 395 F.2d 943 (6th Cir. 1968); United States v. Neal, 344 F.2d 254 (6th Cir. 1965). See also People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901) (a leading American decision discussing the exceptions). See generally 2 J. Wigmore, Evidence §§ 300 et seq. (3d ed. 1940); McCormick, Evidence § 157 (1954); Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 988 (1938). The exceptions when properly applied, are justified by a legitimate need for the evidence that outweighs the perils of undue prejudice to the accused. In reaching this accommodation, the law naturally seeks to shield the accused from unnecessary prejudice. Accordingly, the admission of evidence of a defendant’s prior acts of bad conduct, under the specified exceptions, requires limiting instructions cautioning the jury not to consider the evidence for improper purposes. United States v. Nemeth, supra ; United States v. Sims, 430 F.2d 1089, 1092 (6th Cir. 1970). United States v. Ring, supra at 1004. (Footnote omitted.) Thus if proof of other crimes is justified, it must be justified as an exception to the general rule of nonadmissability. In our instant case the trial judge charged the jury that it could consider this disputed evidence as bearing upon appellant’s intent: If the jury should find beyond a reasonable doubt from the other evidence in the case that the accused did the act charged in the counts of the indictment, then the jury may consider evidence as to an alleged earlier offense of a like nature in determining the state of mind or intent with which the accused did the act charged in the indictment. Intent is a decision of the mind to knowingly do an act with a conscious objective of accomplishing a specific result. Intent and purpose mean the same thing. We note" }, { "docid": "23508720", "title": "", "text": "v. United States, 6 Cir., 1947, 159 F.2d 353; Schwartz v. United States, 9 Cir., 1947, 160 F.2d 718; United States v. Crowe, 7 Cir., 1951, 188 F.2d 209; Bantum v. State, 1952, 7 Terry, Del., 487, 85 A.2d 741; State v. Ward, 1935, 337 Mo. 425, 85 S.W.2d 1, and Marshall v. State, 1949, 227 Ind. 1, 83 N.E.2d 763. . The principle is set out precisely in Section 218 of Wigmore on Evidence, 3d Ed. Vol. I wherein the learned author states: “§ 218. Res Gestae and Acts a part of the Issue; Inseparable Crimes. There is, however, an additional class of cases in which the misconduct of a defendant may be received, irrespective of any bearing on character, and yet not as evidential of one of the above matters (design, motive or tho like), or as relevant to any particular subsidiary proposition. That class includes other criminal acts lohich are an inseparable part of the ichole deed.” . McCormick on Evidence, pp. 328-331, 345; Wigmore on Evidence, 3d Ed., Vol. II, §§ 302, 305, 316, 321; 51 Harv.L.Rev. 988 (1938); United States v. Fawcett, 3 Cir., 1940, 115 F.2d 764, 768; U. S. v. Feldman, 2 Cir., 1943, 136 F.2d 394, 399; Wiess v. United States, 5 Cir., 1941, 122 F.2d 675. . It is quite obvious that a truthful answer to the inquiry would have subjected Alker’s returns to close scrutiny. . Note 86, supra. . Wigmore on Evidence, 3d Ed. Vol. II, § 305. . Other courts presented with the precise issue have reached the same conclusion but without articulation or for oilier reasons. See United States v. Steele, D.C.W.D.Pa.1957, 148 F.Supp. 515; Harris v. United States, 5 Cir., 1957, 243 F.2d 74. . Avery v. State of Alabama, 1940, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377; Hardy v. United States, 1902, 186 U.S. 224, 22 S.Ct. 889, 46 L.Ed. 1137. . Counsel for appellant at the hearing before Judge Van Dusen stated: “Mr. McBride: * * * “It is quite true that when Your Honor selected Dr. Grier Miller to examine Mr." }, { "docid": "21299482", "title": "", "text": "A majority of the state courts likewise allow an inquiry into a defendant’s prior conviction, notwithstanding the pendency of an appeal. See, e. g., Gonzalez v. State, Fla.App., 2 Dist., 1957, 97 So.2d 127, 128; McGee v. State, Tenn.1960, 332 S.W.2d 507, 508-509. See cases collected in Annotations, 6 A.L.R. 1608, 1647; 25 A.L.R. 339, 348; 103 A.L.R. 350, 367; 161 A.L.R. 233, 282. See also 58 Am.Jur., Witnesses, § 745, at 403. The rule is otherwise in the District of Columbia. Fenwick v. United States, 1958, 102 U.S.App.D.C. 212, 252 F.2d 124; Beasley v. United States, 1954, 94 U.S.App.D.C. 406, 218 F.2d 366, certiorari denied 1955, 349 U.S. 907, 75 S.Ct. 584, 99 L.Ed. 1243; Campbell v. United States, 1949, 85 U.S.App.D.C. 133, 176 F.2d 45. These cases, however, deal with a specific statute of the District of Columbia, now D.C.Code § 14-305 (1951), which provides in part: “No person shall be incompetent to testify, in either civil or criminal proceedings, by reason of his having been convicted of crime, but such fact may be given in evidence to affect his credit as a witness, either upon the cross-examination of the witnesses or by evidence aliunde * * *.” In Fenwick v. United States, 1958, 102 U.S.App.D.C. 212, 252 F.2d 124, 126, the court declared : “Clearly it would be improper, for impeachment purposes, to show accusation, arrest, or indictment as well against the accused in a criminal trial as against a witness in any case, civil or criminal. We have pointed out in furtherance of this principle that where the time for appeal had not expired, evidence of a conviction is inadmissible. * * * We are satisfied that the intendment of our Code * * * requires that there be a final conviction before ‘such fact may be given in evidence.’ ” The court here acknowledged the contrary views of the other circuits, but justified its own position upon the existence of the particular District of Columbia statute. 252 F.2d 124, 126, note 3. In Campbell v. United States, 1949, 85 U.S.App.D.C. 133, 176 F.2d 45, 47," }, { "docid": "23516152", "title": "", "text": "9, 118 U.S.App.D.C. at 18-19, 331 F.2d at 92-93. . See 1 F. Wharton, Criminal Evidence §§ 233-234 (12th ed. 1955) ; 1 ,T. Wigmore, Evidence § 218 (3d ed. 1940) ; 2 J. Wigmore, Evidence §§ 300-370, 416. . The rule respecting “other offenses” evidence is sometimes stated in inclusionary form — that such evidence is admissible save when proffered simply to show criminal character — -and sometimes in exclusionary form — that such evidence is not admissible save for one or more of a number of exceptional purposes. See United States v. Deaton, 381 F.2d 114, 116-117 (2d Cir. 1967). We have stated the rule both ways. Compare, e. g., Harper v. United States, 99 U.S.App.D.C. 324, 325, 239 F.2d 945, 946 (1956) with Fairbanks v. United States, 96 U.S.App.D.C. 345, 347, 226 F.2d 251, 253 (1955). While the former connotes a wider range of admissibility, United States v. Deaton, supra, 381 F.2d at 117, see also Spencer v. Texas, 385 U.S. 554, 561, 87 S.Ct. 648, 17 L.Ed.2d 606 n. 7 (1967) and authorities cited, this litigation presents no occasion for selection between the two since under either the evidence in question would in our view have been admissible. . Drew v. United States, supra note 9, 118 U.S.App.D.C. at 16, 331 F.2d at 90. We there summarized the law in the statement that “[e]vidence of other crimes is admissible when relevant to (l)i motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial.” Id. . Id. at 16, 331 F.2d at 90. . Id. . Blunt v. United States, supra note 9, 131 U.S.App.D.C. at 311, 404 F.2d at 1288; Baker v. United States, supra note 9, 131 U.S.App.D.C. at 23, 401 F.2d at 974; Drew v. United States, supra note 9, 118 U.S.App.D.C. at 16, 331 F.2d at 90. ." } ]

[ { "docid": "22108687", "title": "", "text": "court cannot say that the fiduciaries’ construction of the trust documents is inconsistent with the plan’s “plain language,” however, consistency of interpretation counsels strongly in favor of judicial deference. See Bayles, 602 F.2d at 100. The question of interpretation that lies at the heart of the parties’ dispute in this case is an extremely close one. That alone, given that we must defer to any “reasonable” administrative construction of the Plan, constrains us to find here no “abuse of discretion” — presuming, of course, that the Vitro trustees operated under no substantial “conflict of interest.” The question that remains, therefore, is whether the record before us bears out the retirees’ allegations of administrative bias. B The Bruch Court made clear that, even under the deferential “abuse of discretion” standard of review, evidence of administrative bias remains relevant. “[I]f a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘factor[ ] in determining whether there is an abuse of discretion.’ ” Bruch, — U.S. at -, 109 S.Ct. at 956 (quoting Restatement (Second) of Trusts § 187, Comment d (1959)). Here, however, there simply is no evidence in the record to suggest that the Vitro administrators’ benefit determinations were tainted by any such conflict of interest. The Vitro retirement benefits trust is a fully funded, defined-benefit plan. Vitro of course makes contributions to the trust fund; but benefits decisions have an immediate impact only on the fund itself. In turn, Vitro incurs no direct, immediate expense as a result of benefits determinations favorable to Plan participants. In those circumstances, we obviously cannot attribute “presumptive bias” to the administrators — notwithstanding that they serve dual roles as company employees and pension plan fiduciaries. Lowry v. Bankers Life & Casualty Retirement Plan, 871 F.2d 522, 525-26 & n. 7 (5th Cir.1989). The retirees would have us find that the trustees were necessarily operating under a conflict of interest because the Plan itself obviously saved substantial sums as a result of the challenged benefits denials. “[One] can only speculate" } ]

[ { "docid": "17565033", "title": "", "text": "F.3d at 342-43. Clearly, Szymczak’s professed ignorance of the critical Derby documents described above reflects the inadequacy of the record he considered. In addition, when Szymezak analyzed the 1992 Amendment, he looked at the wrong plan document altogether. Although I instructed him to proceed on the basis that the 1992 Amendment was valid as of its adoption in October 1992, Szymezak relied upon the 1996 plan document, not the 1992 Plan Document, though he later acknowledged that he was in error. Szymezak Depo. at 43-44. As of the date of his deposition, he was not sure how the 1992 Plan Document differed from the 1996 plan document because he “didn’t read it word for word.” Id. at 43-44. Szymezak explained that the 1996 plan document did not define the term “service” and so he was forced to look to definitions of “Hours of Service” and “Years of Service” in the 1996 plan document to determine that one could not receive past service credit for unpaid work. However, under the 1992 Plan Document, “service” was a defined term, and employees were entitled to past service credit for unpaid work performed prior to January 1, 1976. Accordingly, even under the erroneous interpretation that “officers,” as well as mere “employees,” must satisfy the 1,000 hour paid work rule, the seven years that Johannssen and Long each worked as unpaid union officials prior to 1976 would have been credited, had Szymezak analyzed the applicable Plan Document. While these are only the most egregious examples of a litany of inadequacies in the record Szymczak considered, they are enough to warrant the conclusion that the materials he relied upon were inadequate and did not support the argument that his determination was reasonably derived based on an adequate review of relevant documents-. 4.Consistency The fourth Botith factor requires examination of “whether the fiduciary’s interpretation was consistent with other provisions in the plan and with earlier interpretations of the plan.” 201 F.3d at 342-43. Szymc-zak’s refusal to read the MEBA/NMU clause to grant past service credit for work with a contracted employer of MEBA/ NMU or its predecessors" }, { "docid": "17565036", "title": "", "text": "the Plan is next amended.” Hart clearly did not feel any urgency about changing the definition, and she did not feel bound to deny service credit to PCD employees for the months when the definition was incorrect. The Plan’s sudden adherence to a strict constructionist interpretation of the Plan is blatantly inconsistent with its past interpretations, particularly regarding scrivener’s errors concerning union name changes. 5. Quality of the Decision-making Process The fifth Booth factor requires examination of “whether the decisionmaking process was reasoned and principled.” 201 F.3d at 342-43. Given the lack of adequate underlying record, Szymczak’s disregard for key words of the Amendment, and his apparent lack of concern for the drafters’ intent, I can only conclude that denying or greatly reducing the plaintiffs’ past service credit requests was a foregone conclusion heavily influenced by adversarial defense counsel. As such, the result is neither “reasoned” nor “principled.” 6. Remaining Factors As to the remaining Booth factors, aside from its disregard for the intent of the framers of the 1992 Amendment, and its nullification of several of the Amendment’s key terms, Szymczak’s determination was consistent with the procedural and substantive requirements of ERISA. Given the strength of the findings of abuse of discretion, there is no need to consider “any external standard relevant to the exercise of discretion”; moreover, “the fiduciary’s motives and any conflict of interest it may have” have been amply covered above. 201 F.3d at 342-43. D. No Remand is Necessary For the reasons explained above, I am persuaded that Szymczak abused his dis cretion in his application of the 1992 Amendment to the undisputed facts of record when he greatly reduced the past service credit of Johannssen and Long, and denied it entirely to Fisher. Moreover, because a full and undisputed factual record is now before this court, I decline to remand the case to the Administrator, and instead, turn to apply those facts to the 1992 Amendment. As the Fourth Circuit has explained: Normally, where the plan administrator has failed to comply with ERISA’s procedural guidelines [or has not considered key evidence].... the proper course" }, { "docid": "17565028", "title": "", "text": "Szymczak correctly stated that his goal in interpreting the 1992 Amendment should be to determine the “objective of the 1992 Amendment,” the “purpose of the language,” and what that language “was designed to do.” Szymczak Depo. at 35-36. Moreover, Szymczak had available definitive evidence concerning the intent of the drafters of the 1992 Amendment, that is the intent of the DEC of MEBA/NMU. Szymczak recognized this source of evidence of intent for he relied heavily, though selectively, upon it, in interpreting the 1992 Amendment. That source was Michael Derby, the General Counsel and assistant to the president of MEBA/NMU in 1992, who assisted in drafting.the 1992 Amendment and its proviso, and whose handwriting appears on one version of the proviso.. Szymczak’s November 19, 1999, determination letter quoted and attached Derby’s 1996 deposition transcript to support the contention that the proviso was intended to prevent “double-dipping.” Plaintiffs Summ.J.Memo.Ex. 2, at 4. In addition, the July 1, 1999, letters each stated that the proviso would be interpreted “in harmony with the testimony as to the reason why the clause was included in the 1992 Amendment, as explained by Mr. Derby.” Id. Indeed, Derby’s deposition was the only deposition cited by Szymczak in his determination letters. However, Szymczak claimed to have been ignorant of memoranda authored by Derby which were attached to his deposition transcript which definitively indicated that the 1992 Amendment was intended to grant Johannssen 21, Long 23 and Fisher eight years past service credit. Notably, Szymczak testified repeatedly that despite recognizing Derby as a definitive source concerning the intent and goals of the 1992 Amendment, Derby’s beliefs about the years of coverage it intended to bestow upon the plaintiffs “would not have influenced my decision” to grant them considerably less credit. Szymczak Depo. at 212-13. That Szymczak’s application of the 1992 Amendment is fatally inconsistent with its “goals and purposes” is obvious when considered in light of at least four contemporaneous statements Derby made before and shortly after adoption of the 1992 Amendment. Three of those statements were contained in memoranda attached as exhibits to the same Derby deposition transcript" }, { "docid": "17565023", "title": "", "text": "AFGE. With few exceptions, this service was unpaid. In all cases, the plaintiffs have no present pension coverage for this service. The 1992 Anendment was intended to address this problem by granting service credit for each year “as an employee or officer” of these three unions. Szymczak decided that in order to obtain past service credit as an “officer,” one would have to satisfy the requirement applicable to service credit for “employees” that one had to have been paid for at least 1,000 hours in order to obtain credit for any year of employment. He imposed this requirement, though “officer” is nowhere mentioned in the unamended Plan Document, and the Amendment contained no such requirement. He imposed this requirement, even though he acknowledged at deposition the addition of the requirement of payment effectively nullified the Amendment term “officer.” Szymczak Depo. at 220-21. If one were paid by the union for 1,000 hours or more, one would already be entitled to service credit as an “employee.” However, if one worked as an unpaid officer, as these unions’ officers commonly worked during the relevant time period, the Anendment did not apply. A Plan Administrator is not empowered to delete key terms from a plan’s language. Because Szymczak’s interpretation effectively deleted the key term “officer” from the Amendment, it was an abuse of discretion. Similarly, Szymczak’s interpretation of the 1992 Amendment proviso disregarded the clear meaning of the word “benefit” and constituted an abuse of discretion. The proviso stated that service credit would be granted under certain circumstances, “provided that the participant has not received service credit with respect to any other pension plan in which the participant is entitled to an accrued benefit.” Szymezak’s November 19, 1999 determination letter explains that the proviso means that if a participant “accrued a vested benefit in another plan for the same period of time for which he or she is seeking credit under the 1992 Amendment, he or she cannot receive credit from the Staff Plan for that same period of time.” Plaintiffs’ SummJ.Memo.Ex. 2, at 4. On this basis, credit was denied to Johannssen" }, { "docid": "17565034", "title": "", "text": "defined term, and employees were entitled to past service credit for unpaid work performed prior to January 1, 1976. Accordingly, even under the erroneous interpretation that “officers,” as well as mere “employees,” must satisfy the 1,000 hour paid work rule, the seven years that Johannssen and Long each worked as unpaid union officials prior to 1976 would have been credited, had Szymezak analyzed the applicable Plan Document. While these are only the most egregious examples of a litany of inadequacies in the record Szymczak considered, they are enough to warrant the conclusion that the materials he relied upon were inadequate and did not support the argument that his determination was reasonably derived based on an adequate review of relevant documents-. 4.Consistency The fourth Botith factor requires examination of “whether the fiduciary’s interpretation was consistent with other provisions in the plan and with earlier interpretations of the plan.” 201 F.3d at 342-43. Szymc-zak’s refusal to read the MEBA/NMU clause to grant past service credit for work with a contracted employer of MEBA/ NMU or its predecessors is flatly inconsistent with prior and subsequent interpretations of the Plan. For example, during the existence of MEBA/NMU, the Plan was defined as “the District No. 1-PCD MEBA Pension Plan,” Plaintiff Summ.J.Memo.Ex. 16, at 1-1. It also bore a signature block for the same (then nonexistent) union. However, Szymczak admitted that despite these facts, he would have known that employees of MEBA/NMU were entitled to participate in the Plan, Szymczak Depo. at 227-30, and indeed these employees did obtain service credit in the Plan during the years 1988-1993 when the merged union existed. Likewise, for at least several months after the merger was rescinded in 1993, the definition of “Employer” for the Plan continued to be MEBA/NMU, but this was not cause for denying service credit to employees of the now independent PCD. Indeed, Plan Administrator Hart wrote a letter to the Plan’s attorney dated January 5, 1994, pointing out that the definition of “Employer” had inadvertently not been changed to reflect the dissolution of the merger. Hart requested that it “should be corrected when" }, { "docid": "17565022", "title": "", "text": "with PCD, the predecessor union to District No. 1 — MEBA/NMU,- and thus the plaintiffs’ time working for these employers did not qualify under the Amendment. Finally, Szymczak imposed a “1,000 hours” paid service rule to eliminate any years of past service credit in which a plaintiff was not employed by a covered entity for at least 1,000 hours at minimum wage. Under this interpretation, Fisher was entitled to no past service credit. I am constrained to reject Szymczak’s reasoning in all of these regards for the reasons set forth herein. 1. The Language of the Plan The first Booth factor directs me to review the Administrator’s exercise of discretion in light of the “the language of the plan,” which would include the 1992 Anendment to the Plan Document. Szymczak’s interpretation of the Amendment disregarded the clear meaning of common words and rendered key parts of it entirely meaningless in a clear abuse of his discretion. Plaintiffs had each served as officers of unions as diverse as PATCO, FAPE (a subordinate body of POID), and AFGE. With few exceptions, this service was unpaid. In all cases, the plaintiffs have no present pension coverage for this service. The 1992 Anendment was intended to address this problem by granting service credit for each year “as an employee or officer” of these three unions. Szymczak decided that in order to obtain past service credit as an “officer,” one would have to satisfy the requirement applicable to service credit for “employees” that one had to have been paid for at least 1,000 hours in order to obtain credit for any year of employment. He imposed this requirement, though “officer” is nowhere mentioned in the unamended Plan Document, and the Amendment contained no such requirement. He imposed this requirement, even though he acknowledged at deposition the addition of the requirement of payment effectively nullified the Amendment term “officer.” Szymczak Depo. at 220-21. If one were paid by the union for 1,000 hours or more, one would already be entitled to service credit as an “employee.” However, if one worked as an unpaid officer, as these" }, { "docid": "17564991", "title": "", "text": "Plan, which according to Hart were automatically adopted by the Plan merely because the Deep Sea Plan had adopted them. Unlike the 1992 Amendment, these changes were adopted without so much as a vote of the governing body of the Plan’s sponsor, MEBA/NMU. These amendments increased the cost to all employers participating in the Plan, but the amendments were adopted without the assent of, or even a vote by, MEBA/NMU’s affiliates. None of the affiliated employers were represented on the Deep Sea Plan’s board of trustees either, so the 1991 and 1993 amendments were without the affiliates’ approval. Nevertheless, the amendments were indisputably valid. Another example of a substantive change to the Plan absent approval of the affiliated unions is the Plan’s decision in 1984 to award past service credit to Walter Browne. Browne received past service credit based on the instruction of PCD’s then-President, Eugene DeFries. In Browne’s case, there was not even a formal amendment to the Plan Document— but DeFries’s action was nonetheless effective to confer three and one half years of past service credit on Browne without any payment of any kind. Hart conceded that if DeFries had directed the Plan to be aménded to grant additional service credits to employees of PCD, then former Plan Administrator Frank Laurito would have had the authority to follow that instruction. A third example of a substantive Plan change effected without affiliate approval is the DEC’S action in 1988 to add employees of the pre-merger NMU as participants in the Plan, and to give them past service credit in the Plan for vesting and participation purposes. Once again, the authority of MEBA/NMU — acting alone— was recognized as sufficient to amend the Plan. 3. Equity Does Not Require or Permit Invalidation of the 1992 Amendment I reject the Plan’s contention that fraud and wrongdoing in connection with the 1988 merger creating MEBA/NMU renders the 1992 Amendment invalid. The Plan urged at trial that the 1992 Amendment should not be enforced on theories of constructive trust and unjust enrichment, federal common law equitable theories. The Plan argued that “[a] primary" }, { "docid": "17565017", "title": "", "text": "under ERISA: (1) the language of the plan; (2) the purposes and goals of the plan; (3) the adequacy of the materials considered to make the decision and the degree to which they support it; (4) whether the fiduciary’s interpretation was consistent with other provisions in the plan and with earlier interpretations of the plan; (5) whether the decisionmaking process was reasoned and principled; (6) whether the decision was consistent with the procedural and substantive requirements of ERISA; (7) any external standard relevant to the exercise of discretion; and (8)the fiduciary’s motives and any conflict of interest it may have. 201 F.3d at 342-43. It is important to note that in weighing these factors, “[a] fiduciary’s conflict of interest, in addition to serving as a factor in the reasonableness inquiry, may operate to reduce the deference given to a .discretionary decision of that fiduciary.” Id. at 343 n. 2. In other words, “a court, presented with a fiduciary’s conflict of interest, may lessen the deference given to the fiduciary’s discretionary decision to the extent necessary to ‘neutralize any untoward influence resulting from that conflict.’ ” Id. (quoting Doe v. Group Hospitalization & Med. Services, 3 F.3d 80, 87 (4th Cir.1993)). C. Analysis The record demonstrates that Plan Administrator Szymczak, was seized of several interests which conflicted with his neutral application of the 1992 Amendment. First, while purporting to accept this court’s direction to consider the 1992 Amendment valid and to apply it neutrally, he espoused the Plan’s position that the Amendment was invalid, and that its purpose was to “continue the criminal activities of the [union officials] that were in place at that time.” Def. Cross Mot. Summ.J.Memo.Ex. G, at 186 (Deposition of Allen Szymczak) (hereinafter “Szymczak Depo.”). Moreover, it is clear that Szymc-zak viewed his determination of past service credit under the 1992 Amendment, pursuant to this court’s order, as an arm of the on-going litigation between the Plan and the plaintiffs, and by extension, between the PCD and the admittedly corrupt leadership of the former merged union, MEBA/MNU. In Szymczak’s determination letter of November 19, 1999, informing plaintiffs" }, { "docid": "17565019", "title": "", "text": "that they were not entitled to the full past service credit they requested, he explained that past credit would be denied in part based upon the distinction between the two warring unions, MEBA/ NMU and PCD. The letter noted that this distinction “is central to this litigation,” as if the past credit benefits determination itself was also part of “this litigation.” Plaintiffs are entitled to a neutral application of the Amendment; not one carried out by an adjunct of the adversarial defense team in this litigation. The degree to which Szymczak relied upon defense counsel in making his determination of past credit reinforces this point. He apparently reviewed only those documents which the defense team called to his attention, because “it would have been impossible for me to go through every page individually.” Id. at 201. Thus, he was familiar with that part of Michael Derby’s, General Counsel to MEBA/NMU, deposition testimony which explained that the proviso clause at the end of the Amendment was intended to prevent double dipping, (receiving pension payments from more than one plan for the same time period of work), but he was unfamiliar with the portions of that deposition explaining that the purpose of the amendment was to ensure that plaintiffs obtain past service credit for their time working as officers of various affiliate unions. Moreover, the Plan claims that Szymc-zak was not influenced by a financial conflict of interest, arguing that Johannssen and Long’s past service credit would most likely be paid by their former employer PASS, and not by PCD, the entity which appointed Szymczak as Administrator of the Plan. Plowever, it is noteworthy that while these two plaintiffs were accorded twelve years each of past service credit, Fisher, whose pension credit the Plan admits would be paid by PCD, was accorded no past service credit. Thus, because of these’ apparent conflicts, there is reason to accord the Administrator’s determinations in plaintiffs’ cases less deference than would otherwise be appropriate. I turn now to consider the Administrator’s determinations in light of the factors delineated in Booth. Szymczak applied the 1992 Amendment to" }, { "docid": "17565020", "title": "", "text": "than one plan for the same time period of work), but he was unfamiliar with the portions of that deposition explaining that the purpose of the amendment was to ensure that plaintiffs obtain past service credit for their time working as officers of various affiliate unions. Moreover, the Plan claims that Szymc-zak was not influenced by a financial conflict of interest, arguing that Johannssen and Long’s past service credit would most likely be paid by their former employer PASS, and not by PCD, the entity which appointed Szymczak as Administrator of the Plan. Plowever, it is noteworthy that while these two plaintiffs were accorded twelve years each of past service credit, Fisher, whose pension credit the Plan admits would be paid by PCD, was accorded no past service credit. Thus, because of these’ apparent conflicts, there is reason to accord the Administrator’s determinations in plaintiffs’ cases less deference than would otherwise be appropriate. I turn now to consider the Administrator’s determinations in light of the factors delineated in Booth. Szymczak applied the 1992 Amendment to determine that Johannssen was entitled to 12 years additional past service credit (out of 21 sought), Long was entitled to 12 years additional past service credit (out of 23 years sought), and Fisher was entitled to no additional credit (out of eight years sought). Szymczak denied year’s of requested past service credit for a series of overlapping reasons. First, Szymczak read the Amendment proviso to eliminate any years during which a plaintiff had ever vested pension credits, even if the plaintiff never received any benefit and was not entitled to any benefit. This reading of the proviso effectively eliminated Johannssen and Long’s claim for pension credit for the nine years they each worked at the FAA. In addition, Szymczak refused to accord past service credit for Johannssen and Long’s FAA service,- or for Fisher’s Boeing service, because the Amendment specified that such past service credit should be accorded for service with a “contracted employer of District No. 1 — MEBA/NMU or one of its affiliates.” He determined that the FAA and Boeing were contract employers" }, { "docid": "17564961", "title": "", "text": "this position until December 1975. In June 1974, Johannssen had begun working to form a new union representing non-air-traffic controller employees of the FAA. These efforts were undertaken on behalf of two unions: the Professional Air Traffic Controllers Organization (“PAT-CO”) and District No. 1 — Pacific Coast Division, Marine Engineers’ Beneficial Association (“PCD”). In 1977, Johannssen resigned from the FAA. He was elected president of the newly-organized Profes sional Airways Systems Specialists (“PASS”), a union that was sponsored and supported financially by PATCO and PCD. In 1982, PASS became an affiliate of PCD. Thus, from 1977 to 1994, Johannssen-was employed by PASS, as well as other unions associated or affiliated with PCD and its successor, District No. 1—MEBA/ NMU (“MEBA/NMU”). Ultimately, Johannssen ascended to the top tier of union management when, in 1991, PASS merged with MEBA/NMU and Johannssen became a vicepresident of MEBA/NMU and a member of MEBA/NMU’s governing body, the District Executive Committee (“DEC”). Johannssen remained employed by the merged union until September 1994, when he terminated his employment with PASS. Upon terminating his employment with PASS, Johannssen received severance pay in the amount of $108,687.63, pursuant to a written agreement. These payments were completed approximately ten months after Johannssen left PASS. While Johannssen was still employed by the FAA, i.e., before he left the FAA to organize PASS and to serve as its president, senior PCD officials repeatedly promised him (apparently as an inducement for him to resign from the FAA and undertake full-time union organizing efforts) that he would be awarded pension credit for his service prior to joining PASS, and for his time serving as an employee and officer of PASS, which had no pension plan. Specifically, these promises were made by Jessie Calhoon (then the President of PCD), C. Eugene DeFries (who succeeded Calhoon as President of PCD, and later the first President of PCD’s successor, MEBA/NMU) and Michael J. Rock, a senior representative of PATCO acting on behalf of PCD and at the instruction of Calhoon. Rock was, at various times, paid by PCD to,work on organizing the PASS union. Johannssen relied on" }, { "docid": "17565018", "title": "", "text": "to ‘neutralize any untoward influence resulting from that conflict.’ ” Id. (quoting Doe v. Group Hospitalization & Med. Services, 3 F.3d 80, 87 (4th Cir.1993)). C. Analysis The record demonstrates that Plan Administrator Szymczak, was seized of several interests which conflicted with his neutral application of the 1992 Amendment. First, while purporting to accept this court’s direction to consider the 1992 Amendment valid and to apply it neutrally, he espoused the Plan’s position that the Amendment was invalid, and that its purpose was to “continue the criminal activities of the [union officials] that were in place at that time.” Def. Cross Mot. Summ.J.Memo.Ex. G, at 186 (Deposition of Allen Szymczak) (hereinafter “Szymczak Depo.”). Moreover, it is clear that Szymc-zak viewed his determination of past service credit under the 1992 Amendment, pursuant to this court’s order, as an arm of the on-going litigation between the Plan and the plaintiffs, and by extension, between the PCD and the admittedly corrupt leadership of the former merged union, MEBA/MNU. In Szymczak’s determination letter of November 19, 1999, informing plaintiffs that they were not entitled to the full past service credit they requested, he explained that past credit would be denied in part based upon the distinction between the two warring unions, MEBA/ NMU and PCD. The letter noted that this distinction “is central to this litigation,” as if the past credit benefits determination itself was also part of “this litigation.” Plaintiffs are entitled to a neutral application of the Amendment; not one carried out by an adjunct of the adversarial defense team in this litigation. The degree to which Szymczak relied upon defense counsel in making his determination of past credit reinforces this point. He apparently reviewed only those documents which the defense team called to his attention, because “it would have been impossible for me to go through every page individually.” Id. at 201. Thus, he was familiar with that part of Michael Derby’s, General Counsel to MEBA/NMU, deposition testimony which explained that the proviso clause at the end of the Amendment was intended to prevent double dipping, (receiving pension payments from more" }, { "docid": "17565052", "title": "", "text": "would not receive benefits because it would be too costly. 455 U.S. 562, 102 S.Ct. 1226, 71 L.Ed.2d 419. . The Plan could have referred the determination of past credit under the 1992 Amendment to independent counsel in order to avoid this conflict. See Copeland v. Carpenters Dist. Council of Houston and Vicinity Pension Fund, 771 F.Supp. 807, 809 (E.D.Tex.1991). . In addition to the reasons analyzed herein, Szymczak denied Long service credit for an unspecified portion of the period from 1969 through 1970 when he held union positions which Szymczak determined did not qualify as ''officer” under the Amendment (e.g., Executive Board of PATCO Local, Sector Representative, Chairman of the PATCO Southern Region Organizing Committee.) \"Officer” is not a defined term in the 1992 Amendment. However, Long is entitled to service credit under subsection (iv) of the Amendment for the time period 1969 through 1970 because he was then an employee of the FAA which had a collective bargaining agreement with PATCO, an affiliate of the direct predecessor of MEBA/NMU. Likewise, Szymczak denied Fisher service credit for the portion of her time between 1973 and 1980 when she was \"steward” for FAPE because he determined that \"steward” did not qualify under the 1992 Amendment as an \"officer” of the union. However, Fisher’s trial testimony made clear that she was a steward only in 1972 which was outside the time period for which she claimed service credit. Thus, I do not need to resolve the issue of whether Szymczak abused his discretion in his interpretation of the term \"officer.” . Even as to employees, as opposed to officers, this requirement only applied to work performed after 1976. However, because Szymczak reviewed the Plan Document in effect in 1996, not the one in effect in 1992, he applied this 1,000 hours requirement to deny Johannssen and Long credit for years prior to 1976." }, { "docid": "17565026", "title": "", "text": "interpretation of the Amendment rendered these provisions meaningless, as he acknowledged his application would result in no one obtaining any past service credit based on them. Szymczak acknowledged that Johannssen was the only Plan participant who was an AFGE officer and that this clause “applies to Johannssen, ... that is clear.” Szymczak Depo. at 208. However, he denied any service credit under this provision because he read into the Amendment the requirement of 1,000 hours paid service. Szymczak also acknowledged that Fisher was an officer of FAPE, which was. a subordinate body of POID, at least for an unspecified portion of the time she claimed. Nevertheless, he denied her credit under this provision because of his “1,000 hour paid service” rule. Indeed, Szymczak acknowledged that no one would receive any credit under these provisions. He had effectively nullified them. Szymezak’s application of the 1992 Amendment effectively nullified the MEBA/NMU clause as well. His handwritten annotation of the 1992 Amendment notes that because MEBA/NMU did not exist until the union merger in 1988, this clause “eliminates pre 4/1/88 service. Didn’t pay attention to detail.” Plaintiffs’ SummJ.Memo.Ex. 17. Szymczak refused to interpret the clause “service with a contracted employer of MEBA/NMU or one of its affiliates” to refer to the current union and its predecessors, as the drafters of the 1992 Amendment clearly intended it would. Rather, he interpreted it to refer only to contracted employers of the merged union entity, despite acknowledging that no one would obtain service credit under this interpretation, and despite his notation indicating that he realized the drafters had made a scrivener’s error. The Plan’s adherence to a strict constructionist interpretation of Plan language, in the face of knowledge of scrivener’s error and in the face of knowledge that such a strict interpretation violated the drafter’s intent and rendered key provisions of the Amendment meaningless, is clearly an abuse of discretion. 2. The Purpose and Goals of the Plan Turning now to the second Booth factor, I must consider whether Szymczak exercised his discretion consistent with “the purposes and goals of the plan.” 201 F.3d at 342-43." }, { "docid": "17565024", "title": "", "text": "unions’ officers commonly worked during the relevant time period, the Anendment did not apply. A Plan Administrator is not empowered to delete key terms from a plan’s language. Because Szymczak’s interpretation effectively deleted the key term “officer” from the Amendment, it was an abuse of discretion. Similarly, Szymczak’s interpretation of the 1992 Amendment proviso disregarded the clear meaning of the word “benefit” and constituted an abuse of discretion. The proviso stated that service credit would be granted under certain circumstances, “provided that the participant has not received service credit with respect to any other pension plan in which the participant is entitled to an accrued benefit.” Szymezak’s November 19, 1999 determination letter explains that the proviso means that if a participant “accrued a vested benefit in another plan for the same period of time for which he or she is seeking credit under the 1992 Amendment, he or she cannot receive credit from the Staff Plan for that same period of time.” Plaintiffs’ SummJ.Memo.Ex. 2, at 4. On this basis, credit was denied to Johannssen for the period April 1968 to March 1977, and to Long for the period March 1967 to December 1976, when each worked at the FAA and participated in the CSRS. However, when each left the FAA, he had not accrued any vested pension benefit and each merely withdrew the employee contribution portion of his account, thereby forfeiting any right to the employer contribution. Each paid income tax on this money. I agree with Szymczak that had Long or Johannssen received a vested pension benefit at the time they left the FAA, they would not have qualified for past service credit under the 1992 Amendment for those FAA years. However, they did not receive any “pension benefit,” they only received their “deferred” salary. Manifestly, it was an abuse of discretion to interpret the 1992 Amendment term “benefit” to exclude credit for the FAA years. The 1992 Amendment granted credit for service as an employee or officer of POID and AFGE, and for service with a contracted employer of MEBA/NMU or one of its affiliates. However, Szymezak’s" }, { "docid": "17565035", "title": "", "text": "is flatly inconsistent with prior and subsequent interpretations of the Plan. For example, during the existence of MEBA/NMU, the Plan was defined as “the District No. 1-PCD MEBA Pension Plan,” Plaintiff Summ.J.Memo.Ex. 16, at 1-1. It also bore a signature block for the same (then nonexistent) union. However, Szymczak admitted that despite these facts, he would have known that employees of MEBA/NMU were entitled to participate in the Plan, Szymczak Depo. at 227-30, and indeed these employees did obtain service credit in the Plan during the years 1988-1993 when the merged union existed. Likewise, for at least several months after the merger was rescinded in 1993, the definition of “Employer” for the Plan continued to be MEBA/NMU, but this was not cause for denying service credit to employees of the now independent PCD. Indeed, Plan Administrator Hart wrote a letter to the Plan’s attorney dated January 5, 1994, pointing out that the definition of “Employer” had inadvertently not been changed to reflect the dissolution of the merger. Hart requested that it “should be corrected when the Plan is next amended.” Hart clearly did not feel any urgency about changing the definition, and she did not feel bound to deny service credit to PCD employees for the months when the definition was incorrect. The Plan’s sudden adherence to a strict constructionist interpretation of the Plan is blatantly inconsistent with its past interpretations, particularly regarding scrivener’s errors concerning union name changes. 5. Quality of the Decision-making Process The fifth Booth factor requires examination of “whether the decisionmaking process was reasoned and principled.” 201 F.3d at 342-43. Given the lack of adequate underlying record, Szymczak’s disregard for key words of the Amendment, and his apparent lack of concern for the drafters’ intent, I can only conclude that denying or greatly reducing the plaintiffs’ past service credit requests was a foregone conclusion heavily influenced by adversarial defense counsel. As such, the result is neither “reasoned” nor “principled.” 6. Remaining Factors As to the remaining Booth factors, aside from its disregard for the intent of the framers of the 1992 Amendment, and its nullification of" }, { "docid": "17565025", "title": "", "text": "for the period April 1968 to March 1977, and to Long for the period March 1967 to December 1976, when each worked at the FAA and participated in the CSRS. However, when each left the FAA, he had not accrued any vested pension benefit and each merely withdrew the employee contribution portion of his account, thereby forfeiting any right to the employer contribution. Each paid income tax on this money. I agree with Szymczak that had Long or Johannssen received a vested pension benefit at the time they left the FAA, they would not have qualified for past service credit under the 1992 Amendment for those FAA years. However, they did not receive any “pension benefit,” they only received their “deferred” salary. Manifestly, it was an abuse of discretion to interpret the 1992 Amendment term “benefit” to exclude credit for the FAA years. The 1992 Amendment granted credit for service as an employee or officer of POID and AFGE, and for service with a contracted employer of MEBA/NMU or one of its affiliates. However, Szymezak’s interpretation of the Amendment rendered these provisions meaningless, as he acknowledged his application would result in no one obtaining any past service credit based on them. Szymczak acknowledged that Johannssen was the only Plan participant who was an AFGE officer and that this clause “applies to Johannssen, ... that is clear.” Szymczak Depo. at 208. However, he denied any service credit under this provision because he read into the Amendment the requirement of 1,000 hours paid service. Szymczak also acknowledged that Fisher was an officer of FAPE, which was. a subordinate body of POID, at least for an unspecified portion of the time she claimed. Nevertheless, he denied her credit under this provision because of his “1,000 hour paid service” rule. Indeed, Szymczak acknowledged that no one would receive any credit under these provisions. He had effectively nullified them. Szymezak’s application of the 1992 Amendment effectively nullified the MEBA/NMU clause as well. His handwritten annotation of the 1992 Amendment notes that because MEBA/NMU did not exist until the union merger in 1988, this clause “eliminates" }, { "docid": "17565021", "title": "", "text": "determine that Johannssen was entitled to 12 years additional past service credit (out of 21 sought), Long was entitled to 12 years additional past service credit (out of 23 years sought), and Fisher was entitled to no additional credit (out of eight years sought). Szymczak denied year’s of requested past service credit for a series of overlapping reasons. First, Szymczak read the Amendment proviso to eliminate any years during which a plaintiff had ever vested pension credits, even if the plaintiff never received any benefit and was not entitled to any benefit. This reading of the proviso effectively eliminated Johannssen and Long’s claim for pension credit for the nine years they each worked at the FAA. In addition, Szymczak refused to accord past service credit for Johannssen and Long’s FAA service,- or for Fisher’s Boeing service, because the Amendment specified that such past service credit should be accorded for service with a “contracted employer of District No. 1 — MEBA/NMU or one of its affiliates.” He determined that the FAA and Boeing were contract employers with PCD, the predecessor union to District No. 1 — MEBA/NMU,- and thus the plaintiffs’ time working for these employers did not qualify under the Amendment. Finally, Szymczak imposed a “1,000 hours” paid service rule to eliminate any years of past service credit in which a plaintiff was not employed by a covered entity for at least 1,000 hours at minimum wage. Under this interpretation, Fisher was entitled to no past service credit. I am constrained to reject Szymczak’s reasoning in all of these regards for the reasons set forth herein. 1. The Language of the Plan The first Booth factor directs me to review the Administrator’s exercise of discretion in light of the “the language of the plan,” which would include the 1992 Anendment to the Plan Document. Szymczak’s interpretation of the Amendment disregarded the clear meaning of common words and rendered key parts of it entirely meaningless in a clear abuse of his discretion. Plaintiffs had each served as officers of unions as diverse as PATCO, FAPE (a subordinate body of POID), and" }, { "docid": "17565027", "title": "", "text": "pre 4/1/88 service. Didn’t pay attention to detail.” Plaintiffs’ SummJ.Memo.Ex. 17. Szymczak refused to interpret the clause “service with a contracted employer of MEBA/NMU or one of its affiliates” to refer to the current union and its predecessors, as the drafters of the 1992 Amendment clearly intended it would. Rather, he interpreted it to refer only to contracted employers of the merged union entity, despite acknowledging that no one would obtain service credit under this interpretation, and despite his notation indicating that he realized the drafters had made a scrivener’s error. The Plan’s adherence to a strict constructionist interpretation of Plan language, in the face of knowledge of scrivener’s error and in the face of knowledge that such a strict interpretation violated the drafter’s intent and rendered key provisions of the Amendment meaningless, is clearly an abuse of discretion. 2. The Purpose and Goals of the Plan Turning now to the second Booth factor, I must consider whether Szymczak exercised his discretion consistent with “the purposes and goals of the plan.” 201 F.3d at 342-43. Szymczak correctly stated that his goal in interpreting the 1992 Amendment should be to determine the “objective of the 1992 Amendment,” the “purpose of the language,” and what that language “was designed to do.” Szymczak Depo. at 35-36. Moreover, Szymczak had available definitive evidence concerning the intent of the drafters of the 1992 Amendment, that is the intent of the DEC of MEBA/NMU. Szymczak recognized this source of evidence of intent for he relied heavily, though selectively, upon it, in interpreting the 1992 Amendment. That source was Michael Derby, the General Counsel and assistant to the president of MEBA/NMU in 1992, who assisted in drafting.the 1992 Amendment and its proviso, and whose handwriting appears on one version of the proviso.. Szymczak’s November 19, 1999, determination letter quoted and attached Derby’s 1996 deposition transcript to support the contention that the proviso was intended to prevent “double-dipping.” Plaintiffs Summ.J.Memo.Ex. 2, at 4. In addition, the July 1, 1999, letters each stated that the proviso would be interpreted “in harmony with the testimony as to the reason why" }, { "docid": "17565051", "title": "", "text": "a greater number of service credits, PCD pays a higher proportion of the Plan's costs. The Plan is free to allocate the cost of the 1992 Amendment to PCD and PASS, and not to the other unions whose employees are covered by the Plan. This was the procedure the Plan followed when another contributing employer (NATCA) was added to the Plan in 1990: the cost of the past service credit was allocated to NATCA in the ordinary course of the Plan's business. Upon enforcement of the 1992 Amendment, the Plan will carry out the same actuarial exercise with respect to PCD and PASS. The Plan may have to collect this money from PCD and PASS, but that hardly makes the 1992 Amendment invalid. . Defendant has not suggested that the severance payments paid to Johannssen and Long were tainted in tiny way. . The plan administrator in Robinson was merely carrying out the explicit terms of the collective bargaining agreement plan. The administrator was not exercising discretion to decide that the plaintiff class of widows would not receive benefits because it would be too costly. 455 U.S. 562, 102 S.Ct. 1226, 71 L.Ed.2d 419. . The Plan could have referred the determination of past credit under the 1992 Amendment to independent counsel in order to avoid this conflict. See Copeland v. Carpenters Dist. Council of Houston and Vicinity Pension Fund, 771 F.Supp. 807, 809 (E.D.Tex.1991). . In addition to the reasons analyzed herein, Szymczak denied Long service credit for an unspecified portion of the period from 1969 through 1970 when he held union positions which Szymczak determined did not qualify as ''officer” under the Amendment (e.g., Executive Board of PATCO Local, Sector Representative, Chairman of the PATCO Southern Region Organizing Committee.) \"Officer” is not a defined term in the 1992 Amendment. However, Long is entitled to service credit under subsection (iv) of the Amendment for the time period 1969 through 1970 because he was then an employee of the FAA which had a collective bargaining agreement with PATCO, an affiliate of the direct predecessor of MEBA/NMU. Likewise, Szymczak denied Fisher" } ]

[ { "docid": "13622047", "title": "", "text": "12, 2001, the Memorandum of Law Regarding Retroactive Annulment of the Automatic Stay filed by CAPX on April 11, 2001 [Dkt. #106-1] and the Debtors’ Memorandum of Law in Support of Debtors’ Objection to Motion for Nunc Pro Tunc Relief from Automatic Stay filed on April 24, 2001 [Dkt. # 114-1], During the course of the evidentiary hearing on April 12, 2001, the debtors’ counsel stated that the debtors had no opposition to this Court granting 11 U.S.C. § 362(d) relief from stay provided the relief was not retroactive, the parties stipulated that CAPX was the current holder of the subject mortgage, and Alice K. Stock-well testified regarding her secondary education degree, business experience at an insurance agency and as operator/manager of a horse breeding farm intermittently for 30 years, her business management during 1991-92, and her involvement in handling family finances. Ms. Stockwell also testified that when a pre-petition creditor, identified as Mr. Jordan, attempted to pursue his claims against the debtors in state court post-petition she advised her attorney who then contacted the creditor regarding the debtors’ rights under § 362. Ms. Stockwell further testified that she did not understand the automatic stay to apply to debts that arose post-petition and that she did not believe that she was required to call the bank to advise the Movant that she had a bankruptcy case pending because she was aware that the bank was receiving payments under the chapter 13 plan and presumed the bank’s representatives knew about these payments, and therefore knew about the chapter 13 case. No other witnesses testified. While emphasizing that the debtors and their counsel had actual notice of the claims transfer, counsel for the Movant acknowledged during the evidentiary hearing that the Movant neither amended the proof of claim on file nor gave the Bankruptcy Court Clerk’s Office notice of the transfer of the claim from Merchants to Atlantic to Capital Crossing Bank to CAPX. Although the debtors, their counsel and the chapter 13 trustee were admittedly aware that Atlantic became the actual creditor, the debtors’ counsel asserted that it was the Movant’s" } ]

[ { "docid": "15929733", "title": "", "text": "taken to rectify the situation. (Doc. No. 130, at pg. 1-2). While these points are to a certain degree exculpatory in nature, especially the last, they lack the necessary persuasive weight, whether viewed separately or together, to eliminate the need to impose punitive damages. First, Fifth Third Bank’s position concerning notice ignores that the notification provided to the Debtor’s insurer was, in the first place, a stay violation. Consequently, what Fifth Third Bank has essentially attempted to argue is that it should be rewarded for attempting to perfect notice of its stay violation on the Debtor. Logic, however, dictates that a stay violation cannot be cured by simply providing notice of the stay violation. The same logic also applies to Fifth Third Bank’s reliance on a third party; Fifth Third Bank, having approved of the act of their agent, cannot now disavow responsibility for their action. Accord Kolstad v. American Dental Ass’n, 527 U.S. 526, 542-43, 119 S.Ct. 2118, 2128, 144 L.Ed.2d 494 (1999). Even setting this aside, Fifth Third Bank’s position that the Debtor, herself, is to blame for its failure to perfect notice on her — by the Debtor failing to provide a change of address as required by the terms of the note and mortgage — is disingenuous. Both the mortgage and note set forth the Debtor’s current residence, not a former out of state residence, as her proper mailing address, that being 618 Ogden, Toledo, Ohio 43609. Thus, it would reasonable to conclude — in fact, it would be the most logical reading — that the Debtor was only required to provide notice of a change of address if she moved from the 618 Ogden property. Going further, no indication was given that the funding provided by Fifth Third Bank was meant to finance the Debtor’s purchase of an investment property, as opposed to a residence; thus, it must be presumed that the Debtor would reside at the 618 Ogden property. Finally, it has not gone unnoticed to the Court that the requirement in its note and mortgage that the Debtor provide notice of a change" }, { "docid": "23179982", "title": "", "text": "debtor in that they insured the debtor against any claims the directors or officers might levy directly against it. Canceling the insurance policies would extinguish the debtor’s right to this indemnification. Consequently, the Ninth Circuit ruled that the policies represented property of the estate and cancellation was automatically stayed. Id. at 519 & n. 2. In Minoco, the insurer unambiguously sought to extinguish the debtor’s own right to insurance coverage. In the case at bar, however, Liberty makes no threat to Spauld-ing’s insurance coverage. Although Spauld-ing claims an interest in many of the policies, Nortek and Monogram also claim coverage under those policies. That two separate property interests might exist in a single policy was a point recognized by the Fifth Circuit: On one extreme, when a debtor corporation owns a liability policy that exclusively covers its directors and officers, we know from Louisiana World Exposition [832 F.2d 1391 (5th Cir.1987)] that the proceeds of that D & 0 policy are not part of the debtor’s bankruptcy estate. On the other extreme, when a debtor corporation owns an insurance policy that covers its own liability vis-a-vis third parties, we — like almost all other courts that have considered the issue — declare or at least imply that both the policy and the proceeds of that policy are property of the debtor’s bankruptcy estate. But we have not yet grappled with how to treat the proceeds of a liability policy when (1) the policy-owning debtor is but one of two or more coin- sureds or additional named insureds, (2) the rights of the other eoinsured(s) or additional named insured(s) are not merely derivative of the rights of one primary named insured, and (3) the aggregate potential liability substantially exceeds the aggregate limits of available insurance coverage. Matter of Vitek, Inc., 51 F.3d at 535 (citations omitted) (emphasis in original). Here, Nortek and Monogram are both coinsured with the debtor. Additionally, their property rights are not merely derivative of Spaulding’s rights; Nortek and Monogram assert their own, independent rights to coverage. Liberty meticulously circumscribed the scope of the New York suit to" }, { "docid": "15929735", "title": "", "text": "of address was meant, at least in part, to cover exactly the situation Fifth Third Bank believed was present here: the Debtor’s relocation from the 618 Ogden property to another residence. Finally, it simply cannot be overlooked that Fifth Third Bank is a sophisticated creditor who must have recognized the need to bring an appropriate action before the Court when seeking to change the terms of the Debtor’s insurance. Although in certain limited circumstances nunc pro tunc order approving a creditor’s prior action are entered by a court when the circumstances so require, this case is not representative of such a situation. In re Stockwell, 262 B.R. 275 (Bankr.D.Vt. 2001). At no point was Fifth Third Bank ever put under the impression that the Debtor’s residence was not insured. Thus, at no point was Fifth Third Bank’s interest in the Debtor’s property ever seriously placed in jeopardy. Instead, Fifth Third Bank contacted the Debtor’s insurer simply to “make the appropriate adjustments to provide coverage for vandalism and malicious mischief during this period of vacancy.” (Doc. 130, Ex. A). However, such an act seems highly surreptitious; besides implying that a standard homeowner’s policy of insurance does not provide such coverage, it also supposes that Fifth Third Bank did not require the Debtor to have such coverage; a circumstance which, although simply conjecture without the actual production of her policy, seems very out of the ordinary for a sophisticated creditor like Fifth Third Bank. Once an award of punitive damages is found to be appropriate, factors to be considered in determining the amount of the award include, but are not limited to the following: (1) the nature of the creditor’s conduct; (2) the nature and extent of harm to the debtor; (3) the creditor’s ability to pay damages; (4) the level of sophistication of the creditor; (5) the creditor’s motives; (6) and any provocation by the debtor. In re Baggs, 283 B.R. 726 (Bankr. C.D.Ill.2002). As applied here, the Court has already mentioned that Fifth Third Bank, upon learning of its error, took immediate steps to rectify the situation, thus providing a" }, { "docid": "1134804", "title": "", "text": "at this juncture to distinguish the instant action from the decision of the Third Circuit Court of Appeals in Keystone Fabric Laminates, Inc. v. Federal Insurance Co., 407 F.2d 1353 (3d Cir. 1969). There, the court held that, where a bailee had on its own initiative secured insurance to protect goods of others held in its possession, a bailor was not entitled to a priority as to proceeds payable under that insurance policy if a loss occurred. The court stated that: Finally, appellants claim that to give plaintiff priority would defeat the purpose of the policy, viz., to protect the customers from loss. We think, however, that the policy was not taken out any more for the customers’ benefit than for the plaintiff’s own protection. In such circumstances, we can find no compelling purpose behind the policy which may be defeated by granting plaintiff the priority it seeks. 407 F.2d at 1356-1357. See also Gardner v. Freystown Mutual Fire Ins. Co., 350 Pa. 1, 4-5, 37 A.2d 535 (1944). In the instant action, the debtor procured property insurance at the direction of the Bank as expressly required in the July 20, 1970, security agreement. The Bank obviously did not require the debtor to procure the insurance to protect the interests of the debtor himself or third-party unsecured creditors from loss to the goods held as collateral. The only reasonable and unmistakable purpose the Bank could have had in requiring this coverage was to satisfy a business concern it had with the debtor because that is the only relationship that existed between them. In turn, the only business subject the undertaking could have applied to was the security transaction because that was the only object of their engagement. If, as in Keystone, the Bankrupt, at its own instance, had secured property insurance through a separate insurance policy to protect itself from loss to the goods and not because of a prior contractual requirement from the Bank, the Bankrupt and not the Bank would be entitled to claim the insurance monies under that policy. And this result is no different than that" }, { "docid": "15929727", "title": "", "text": "of the automatic stay are statutorily provided for under paragraph (h) of § 362 which provides “[a]n individual injured by any willful violation of a stay ... shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” This section was added to the Bankruptcy Code in 1984, and was intended to supplement the only previously available remedy for a stay violation: Contempt. Based, therefore, upon § 362(h)’s supplementation for the remedy of contempt, this provision will be applied, unless the context clearly requires otherwise, to actions in which damages are sought for a stay violation. Wagner v. Ivory (In re Wagner), 74 B.R. 898, 902-03 (Bankr.E.D.Pa.1987). See also In re Santa Rosa Truck Stop, Inc., 74 B.R. 641, 643 (Bankr.N.D.Fla.1987) (holding party in civil contempt and subject to the assessment of damages pursuant to § 362(h)). Thus, although her motion was couched in terms of contempt, as the Court cannot discern any compelling reason to dissociate § 362(h) from the Debtor’s action to receive damages for a stay violation, the standard for awarding damages through the application of § 362(h) will be applied. An award of damages is mandatory under § 362(h) when a violation of the automatic stay is found to be “willful.” In re Johnson, 253 B.R. 857, 861 (Bankr.S.D.Ohio 2000). As used in § 362(h), “willful,” unlike many other contexts, does not require any specific intent. Fleet Mortgage Group, Inc. v. Kaneb, 196 F.3d 265, 269 (1st Cir.1999). Rather, for purposes of § 362(h), “willful” has simply been interpreted to mean any intentional and deliberate act undertaken with knowledge— whether obtained through formal notice or otherwise — of the pending bankruptcy. In re Kortz, 283 B.R. 706, 712 (Bankr.N.D.Ohio 2002); Patton v. Shade, 263 B.R. 861, 866 (C.D.Ill.2001). Within this definition, such “willful” conduct is unarguably present here; by communicating false information to the Debtor’s insurance company, Fifth Third Bank can be said to have deliberately and intentionally, albeit not necessary with malice, caused a notice of insurance cancellation to be issued to the Debtor. And, by its participation in" }, { "docid": "15929728", "title": "", "text": "violation, the standard for awarding damages through the application of § 362(h) will be applied. An award of damages is mandatory under § 362(h) when a violation of the automatic stay is found to be “willful.” In re Johnson, 253 B.R. 857, 861 (Bankr.S.D.Ohio 2000). As used in § 362(h), “willful,” unlike many other contexts, does not require any specific intent. Fleet Mortgage Group, Inc. v. Kaneb, 196 F.3d 265, 269 (1st Cir.1999). Rather, for purposes of § 362(h), “willful” has simply been interpreted to mean any intentional and deliberate act undertaken with knowledge— whether obtained through formal notice or otherwise — of the pending bankruptcy. In re Kortz, 283 B.R. 706, 712 (Bankr.N.D.Ohio 2002); Patton v. Shade, 263 B.R. 861, 866 (C.D.Ill.2001). Within this definition, such “willful” conduct is unarguably present here; by communicating false information to the Debtor’s insurance company, Fifth Third Bank can be said to have deliberately and intentionally, albeit not necessary with malice, caused a notice of insurance cancellation to be issued to the Debtor. And, by its participation in her plan of reorganization, Fifth Third Bank must be deemed to have had both notice and knowledge of the Debtor’s pending bankruptcy. Under § 362(h), however, mandatory damages for a “willful” violation of the automatic stay are limited to “actual damages, including costs and attorneys’ fees ...” Based upon the representations of Debtor’s counsel, which this Court accepts as accurate, such damages in this case are confined solely to attorney fees; here, 2 hours at $175.00 per hour for a total of $350.00. Still, as applied to § 362(h), the possible imposition of punitive damages cannot be overlooked as this provision goes on to provide that “in appropriate circumstances, [a debtor] may recover punitive damages.” In re Baggs, 283 B.R. 726, 729 (Bankr.C.D.Ill.2002). For purposes of § 362(h), an award of punitive damages is not conditioned upon the existence of a finding of any actual damages. Id. All the same, the imposition of punitive damage is not an action to be taken lightly, and in this regard, this Court has always exercised great restraint in" }, { "docid": "15929726", "title": "", "text": "action upon the Debtor, but was unsuccessful in doing so, having sent its notice to a former out-of-state address of the Debtor. As a consequence, the Debtor did not become aware of Fifth Third Bank’s actions until May 8, 2004, when she received notice from her insurance company that her policy was to be cancelled. Immediately after receiving notice of the pending cancellation, the Debtor contacted her attorney, who then filed the instant show cause motion for contempt. Directly upon receiving notice of this Motion, Fifth Third Bank informed the Debtor’s insurance company of its error. DISCUSSION In this case, the Debtor seeks punitive damages in the amount of $1,000.00 plus attorney fees for Fifth Third’s acknowledged violation of the automatic stay of § 362(a). Determinations concerning violations of the automatic stay are core proceedings pursuant to 28 U.S.C. § 157(b)(2)(G)/(0). Davis v. Conrad Family Ltd. Partnership (In re Davis), 247 B.R. 690, 694 (Bankr.N.D.Ohio 1999). Thus, this Court has the jurisdictional authority to enter a final order in this matter. Damages for a violation of the automatic stay are statutorily provided for under paragraph (h) of § 362 which provides “[a]n individual injured by any willful violation of a stay ... shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” This section was added to the Bankruptcy Code in 1984, and was intended to supplement the only previously available remedy for a stay violation: Contempt. Based, therefore, upon § 362(h)’s supplementation for the remedy of contempt, this provision will be applied, unless the context clearly requires otherwise, to actions in which damages are sought for a stay violation. Wagner v. Ivory (In re Wagner), 74 B.R. 898, 902-03 (Bankr.E.D.Pa.1987). See also In re Santa Rosa Truck Stop, Inc., 74 B.R. 641, 643 (Bankr.N.D.Fla.1987) (holding party in civil contempt and subject to the assessment of damages pursuant to § 362(h)). Thus, although her motion was couched in terms of contempt, as the Court cannot discern any compelling reason to dissociate § 362(h) from the Debtor’s action to receive damages for a stay" }, { "docid": "4748323", "title": "", "text": "vitiate the protection of section 1322(b)(2). Id. at 489. In light of the Fifth Circuit’s recent decision on this matter, we find that the bankruptcy court erred in bifurcating United’s claim into secured and unsecured claims. CREDIT LIFE AND DISABILITY INSURANCE ARE NOT “ADDITIONAL SECURITY” UNDER 11 U.S.C. § 1322(b)(2) The second issue on appeal is whether credit life and disability insurance qualify as “additional security” under 11 U.S.C. § 1322(b)(2). If so, the indebtedness is subject to tampering by the debtor. The bankruptcy court, relying on Oak Tree Savings Bank v. Washington, No. 90-2752 (W.D.La. July 30, 1991), held that policies providing for payment of proceeds to a lender in full or partial satisfaction of the debt constituted additional security. Following the bankruptcy court’s decision, however, the Fifth Circuit reversed Oak Tree Savings Bank. In its decision entitled In re Washington, 967 F.2d 173 (5th Cir.1992), the Fifth Circuit stated, “The plain meaning of section 1322(b)(2)’s language establishes that its purpose is to protect creditors_ [Interpreting ‘additional security’ to include optional credit life and disability insurance would defeat this purpose for such insurance has become a standard accompaniment for mortgage loans.” Id. at 175 (footnotes omitted). Debtors attempt to distinguish In re Washington from their own bankruptcy proceedings by pointing out that in the last paragraph of its decision the Fifth Circuit states that “[although it is conceivable that a credit life and disability policy that (1) is a prerequisite for obtaining a loan, (2) was separately pledged as additional security, and (3) contains an assignment of interest or (4) contains other language perfecting a security interest in the policy might serve as ‘additional security’ for section 1322(b)(2) purposes, this is not the case before us.” Id. at 176 (footnotes omitted). It is debtors’ argument that the credit life and disability insurance policies they procured from United do have assignments of interest and therefore satisfy the third factor. While it is true United is the beneficiary under the policies, this alone is not enough to satisfy the situation the Fifth Circuit anticipated. As we read the Fifth Circuit’s opinion," }, { "docid": "15929731", "title": "", "text": "the Bankruptcy Code, would also run counter to the purpose underlying the existence of punitive damages in general: To deter similar conduct in the future. In re Baggs, 283 B.R. at 729. Therefore, even in the absence of any overt wrongful intent, this Court will follow the rule, as has been applied by other courts, that an award of punitive damages may still be appropriate for a violation of the automatic stay when there is a strong showing that the creditor acted in bad faith or otherwise undertook their actions in reckless disregard of the law. In re Gullett, 230 B.R. 321 (Bankr.S.D.Tex.1999), order rev’d on other grounds, 253 B.R. 796 (S.D.Tex. 1999), aff'd, 220 F.3d 585 (5th Cir.2000); In re Gagliardi, 290 B.R. 808, 820 (Bankr. D.Colo.2003); In re Barboza, 211 B.R. 450, 452-53 (Bankr.D.R.I.1997). Upon implementation of this standard, there exists one salient feature in this matter: When informed that the Debtor’s property was vacant, Fifth Third Bank did not take any steps to verify the information, such as by contacting the Debtor’s attorney, but instead took immediate measures that, while ostensibly protective of its lien interest in the property, were done in total disregard to both the automatic stay and to the Debtor’s freehold interest in her property. Such conduct, while not automatically necessitating the imposition of punitive damages, is highly indicative of acts that are reckless or otherwise undertaken in bad faith. As such, the burden is clearly placed upon Fifth Third Bank to offer a viable explanation(s) for its actions. As an explanation, Fifth Third Bank put forth that the Court should take into consideration the cumulative weight of these factors: (1) it reasonably relied upon the false representations of a third party that the Debtor’s residence was vacant; (2) upon being informed of the vacancy of her residence, it sent notice thereof to the Debtor; (3) because the Debtor never submitted a change of address, as required by the terms of the note, such notice was sent to the Debtor’s former residence in Michigan; and (4) upon learning of its error, steps were immediately" }, { "docid": "18541785", "title": "", "text": "TS & H is authorized to hold the $2,500 retainer in escrow towards payment against its final fee application, or until such time as this Court determines otherwise. E. Priority Lien on Debtor’s Real Property Ahead of Existing Lien Holders. Finally, the Application seeks an order from this Court permitting TS & H to obtain a first-priority hen on Debtor’s real property to secure TS & H’s fees up to the amount of $30,000. Such a hen is requested by Debtor under many of the same arguments already advanced for approval of the “flexible” fee arrangement proposed in the Application. Mr. Lerner claims once more that it is reasonable for the Court to make this provision pursuant to § 328(a), and that it is unlikely any hen holders will ever be adversely effected because of certain expectations he has about the success of this Chapter 11 case. Before a hen can be obtained under § 364(d), the debtor must show that it is unable to obtain credit elsewhere and that the existing hen holders of the property remain adequately protected. 11 U.S.C. § 364(d)(1)(A) and (B). The Debtor’s Statement of Financial Affairs and Schedules filed June 3, 1996, and the appraisals attached to the Debtor’s Reply reflect a value on the real estate of $197,000. The Schedules further reflect a first lien on the real estate in favor of Fifth Third Bank in the amount of $51,-049.36. Finally, the Schedules indicate that there are unliquidated and disputed federal tax hens and unliquidated and disputed State of Ohio tax and insurance hens secured by the real estate totaling $221,468.84. In its Reply to Fifth Third Bank, the Debtor argues that the bank will be adequately protected as the first hen holder. However, at the hearing, Mr, Lerner conceded that the Debtor has no equity in the real estate in which TS & H desires to obtain a senior hen superior to that of Fifth Third Bank, the IRS and the Ohio tax and insurance authorities. Furthermore, Debtor offered no evidence demonstrating how the existing hen holders would be adequately protected if" }, { "docid": "15929725", "title": "", "text": "Chapter 13 plan of reorganization, which was confirmed by this Court in December of 2001, was the Debtor’s mortgage debt on her residence. In both her petition and her plan of reorganization, the Debtor listed the address of her residence as 618 Ogden, Toledo, Ohio 43609. In addition, since the commencement of this case, all notices sent by the Court to Fifth Third Bank listed the 618 Ogden address as the Debt- or’s mailing address. In early 2004, during the pendency of her plan of reorganization, and for reasons that are not entirely clear, Fifth Third Bank came under the erroneous belief that the Debtor had physically vacated her residence. Based on this belief, Fifth Third Bank, in accordance with their internal procedures, contacted the Debtor’s insurance company so as to make appropriate arrangements for this change of circumstances, specifically, seeking to have adjustments made in coverage so as provide indemnity for vandalism and malicious mischief during the period of vacancy. (Doc. 130, Ex. A). Fifth Third Bank then sought to accomplish notice of its action upon the Debtor, but was unsuccessful in doing so, having sent its notice to a former out-of-state address of the Debtor. As a consequence, the Debtor did not become aware of Fifth Third Bank’s actions until May 8, 2004, when she received notice from her insurance company that her policy was to be cancelled. Immediately after receiving notice of the pending cancellation, the Debtor contacted her attorney, who then filed the instant show cause motion for contempt. Directly upon receiving notice of this Motion, Fifth Third Bank informed the Debtor’s insurance company of its error. DISCUSSION In this case, the Debtor seeks punitive damages in the amount of $1,000.00 plus attorney fees for Fifth Third’s acknowledged violation of the automatic stay of § 362(a). Determinations concerning violations of the automatic stay are core proceedings pursuant to 28 U.S.C. § 157(b)(2)(G)/(0). Davis v. Conrad Family Ltd. Partnership (In re Davis), 247 B.R. 690, 694 (Bankr.N.D.Ohio 1999). Thus, this Court has the jurisdictional authority to enter a final order in this matter. Damages for a violation" }, { "docid": "15929729", "title": "", "text": "her plan of reorganization, Fifth Third Bank must be deemed to have had both notice and knowledge of the Debtor’s pending bankruptcy. Under § 362(h), however, mandatory damages for a “willful” violation of the automatic stay are limited to “actual damages, including costs and attorneys’ fees ...” Based upon the representations of Debtor’s counsel, which this Court accepts as accurate, such damages in this case are confined solely to attorney fees; here, 2 hours at $175.00 per hour for a total of $350.00. Still, as applied to § 362(h), the possible imposition of punitive damages cannot be overlooked as this provision goes on to provide that “in appropriate circumstances, [a debtor] may recover punitive damages.” In re Baggs, 283 B.R. 726, 729 (Bankr.C.D.Ill.2002). For purposes of § 362(h), an award of punitive damages is not conditioned upon the existence of a finding of any actual damages. Id. All the same, the imposition of punitive damage is not an action to be taken lightly, and in this regard, this Court has always exercised great restraint in making such an award. In re Perviz, 302 B.R. 357, 373 (Bankr.N.D.Ohio 2003). See also In re Barboza, 211 B.R. 450 (Bankr.D.R.I.1997) (for stay violations, punitive awards are reserved for cases in which violator’s conduct amounts to something more than bare violation justifying compensatory damages or injunctive relief.). Generally speaking then, cases in which punitive damages have been awarded involve conduct that is egregious, vindictive or intentionally malicious. See, e.g., In re Clayton, 235 B.R. 801, 811 (Bankr.M.D.N.C.1998). In the instant matter, Fifth Third Bank’s conduct cannot be said to rise to such a high level of culpability; of importance, once confronted with its transgression, Fifth Third Bank took immediate steps to rectify the situation. Still, by § 362(h)’s use of the words “appropriate circumstances,” as opposed to any reference to the transgressor’s state of mind, a high level of culpable intent is not necessarily a prerequisite to an award of punitive damages. To hold otherwise, besides running counter to the plain-meaning approach repeatedly applied by the Supreme Court of the United States when interpreting" }, { "docid": "15929736", "title": "", "text": "130, Ex. A). However, such an act seems highly surreptitious; besides implying that a standard homeowner’s policy of insurance does not provide such coverage, it also supposes that Fifth Third Bank did not require the Debtor to have such coverage; a circumstance which, although simply conjecture without the actual production of her policy, seems very out of the ordinary for a sophisticated creditor like Fifth Third Bank. Once an award of punitive damages is found to be appropriate, factors to be considered in determining the amount of the award include, but are not limited to the following: (1) the nature of the creditor’s conduct; (2) the nature and extent of harm to the debtor; (3) the creditor’s ability to pay damages; (4) the level of sophistication of the creditor; (5) the creditor’s motives; (6) and any provocation by the debtor. In re Baggs, 283 B.R. 726 (Bankr. C.D.Ill.2002). As applied here, the Court has already mentioned that Fifth Third Bank, upon learning of its error, took immediate steps to rectify the situation, thus providing a mitigating reference point in setting damages. On the other hand, and also just discussed, Fifth Third Bank is a highly sophisticated creditor with significant financial resources who undertook actions highly vexatious in nature against what appears to be an average consumer debtor. Therefore, when these considerations are weighed against each other, the Court finds that, under the particular circumstances as they exist in this matter, the imposition of $1,000.00 in punitive damages is appropriate. For these reasons, judgment will be rendered against Fifth Third Bank in the total amount of $1,350.00, of which $350.00 represents attorney fees, while $1,000.00 represents punitive damages. In reaching the conclusions found herein, the Court has considered all of the evidence, exhibits and arguments of counsel, regardless of whether or not they are specifically referred to in this Decision. Accordingly, it is ORDERED that, in accordance with 11 U.S.C. § 362(h), the Debtor, Cheryl Bivens, be, and is hereby, awarded One Thousand dollars ($1,000.00) as punitive damages. It is FURTHER ORDERED that, in accordance with 11 U.S.C. § 362(h), attorney," }, { "docid": "20907338", "title": "", "text": "SCHERMER, Bankruptcy Judge. Heritage Bank (Heritage) appeals from a Bankruptcy Court order confirming Suzette 'Woodward’s (Debtor) Fifth Amended Chapter 11 Plan. The confirmation order is a final order of the Bankruptcy Court over which we have jurisdiction on appeal. See 28 U.S.C. § 158(b). The Notice of Appeal and Statement of Elec tion also references an April 29, 2014 order denying the Debtor’s Third Amended Plan. We believe that the denial of confirmation of the Debtor’s Third Amended Plan is not a final order and cannot be the subject of this appeal. Bullard v. Blue Hills Bank, — U.S. —, 135 S.Ct. 1686, 191 L.Ed.2d 621 (2015). Therefore, the sole basis of this appeal is the order confirming the Debtor’s Fifth Amended Chapter 11 Plan. For the following reasons, the confirmation order is reversed and the case is remanded for a new confirmation hearing. ISSUES 1. Whether an impaired class of claims has accepted the Debtor’s Fifth Amended Plan. 2. Whether 11 U.S.C. § 1129(b)(2)(B)(ii)’s absolute priority rule prevents individual debtors in Chapter 11 from retaining property acquired prior to the filing of the bankruptcy petition when not all creditors’ claims will be paid in full. 3. Whether the value of the property to be distributed under the Fifth Amended Plan is less than the Debtor’s disposable income. BACKGROUND The Debtor is a practicing pathologist in Grand Island, Nebraska. She is a member of Pathology Specialists, LLC. On April 4, 2011, the Debtor filed for relief under Chapter 7 of the Bankruptcy Code. Heritage holds an allowed, unsecured claim in the amount of $270,566.00. On May 15, 2012, the Debtor acquired property at 2604 Arrowhead Road in Grand Island, Nebraska as her principal residence from Leland and Marie Elliott (Elliotts). As part of the purchase price, the Debtor signed a promissory note in favor of the Elliotts in the amount of $169,900, and granted the Elliotts a security interest in the property. The Elliotts perfected their lien in the Debtor’s property. In addition to regular monthly payments, the terms of the note required the Debtor to make a balloon payment" }, { "docid": "15929732", "title": "", "text": "attorney, but instead took immediate measures that, while ostensibly protective of its lien interest in the property, were done in total disregard to both the automatic stay and to the Debtor’s freehold interest in her property. Such conduct, while not automatically necessitating the imposition of punitive damages, is highly indicative of acts that are reckless or otherwise undertaken in bad faith. As such, the burden is clearly placed upon Fifth Third Bank to offer a viable explanation(s) for its actions. As an explanation, Fifth Third Bank put forth that the Court should take into consideration the cumulative weight of these factors: (1) it reasonably relied upon the false representations of a third party that the Debtor’s residence was vacant; (2) upon being informed of the vacancy of her residence, it sent notice thereof to the Debtor; (3) because the Debtor never submitted a change of address, as required by the terms of the note, such notice was sent to the Debtor’s former residence in Michigan; and (4) upon learning of its error, steps were immediately taken to rectify the situation. (Doc. No. 130, at pg. 1-2). While these points are to a certain degree exculpatory in nature, especially the last, they lack the necessary persuasive weight, whether viewed separately or together, to eliminate the need to impose punitive damages. First, Fifth Third Bank’s position concerning notice ignores that the notification provided to the Debtor’s insurer was, in the first place, a stay violation. Consequently, what Fifth Third Bank has essentially attempted to argue is that it should be rewarded for attempting to perfect notice of its stay violation on the Debtor. Logic, however, dictates that a stay violation cannot be cured by simply providing notice of the stay violation. The same logic also applies to Fifth Third Bank’s reliance on a third party; Fifth Third Bank, having approved of the act of their agent, cannot now disavow responsibility for their action. Accord Kolstad v. American Dental Ass’n, 527 U.S. 526, 542-43, 119 S.Ct. 2118, 2128, 144 L.Ed.2d 494 (1999). Even setting this aside, Fifth Third Bank’s position that the Debtor," }, { "docid": "15929734", "title": "", "text": "herself, is to blame for its failure to perfect notice on her — by the Debtor failing to provide a change of address as required by the terms of the note and mortgage — is disingenuous. Both the mortgage and note set forth the Debtor’s current residence, not a former out of state residence, as her proper mailing address, that being 618 Ogden, Toledo, Ohio 43609. Thus, it would reasonable to conclude — in fact, it would be the most logical reading — that the Debtor was only required to provide notice of a change of address if she moved from the 618 Ogden property. Going further, no indication was given that the funding provided by Fifth Third Bank was meant to finance the Debtor’s purchase of an investment property, as opposed to a residence; thus, it must be presumed that the Debtor would reside at the 618 Ogden property. Finally, it has not gone unnoticed to the Court that the requirement in its note and mortgage that the Debtor provide notice of a change of address was meant, at least in part, to cover exactly the situation Fifth Third Bank believed was present here: the Debtor’s relocation from the 618 Ogden property to another residence. Finally, it simply cannot be overlooked that Fifth Third Bank is a sophisticated creditor who must have recognized the need to bring an appropriate action before the Court when seeking to change the terms of the Debtor’s insurance. Although in certain limited circumstances nunc pro tunc order approving a creditor’s prior action are entered by a court when the circumstances so require, this case is not representative of such a situation. In re Stockwell, 262 B.R. 275 (Bankr.D.Vt. 2001). At no point was Fifth Third Bank ever put under the impression that the Debtor’s residence was not insured. Thus, at no point was Fifth Third Bank’s interest in the Debtor’s property ever seriously placed in jeopardy. Instead, Fifth Third Bank contacted the Debtor’s insurer simply to “make the appropriate adjustments to provide coverage for vandalism and malicious mischief during this period of vacancy.” (Doc." }, { "docid": "18541768", "title": "", "text": "contravenes the estabhshed statutory procedure. Specifically, the Trustee objects to TS & H’s requests for a post-petition retainer, a super-priority administrative expense, a first-priority hen on Debtor’s real estate to secure payment of TS & H’s fees, monthly invoicing and payment of fees without notice, hearing, and prior authorization by the Court before each payment, and the holding of the $5,000 retainer to apply towards TS & H’s final fee apphcation. No objection was filed to the appointment of TS & H as Debtor’s counsel. None of the creditors hsted in the schedules asserted an objee tion during the 20-day objection period and none entered an appearance at the hearing. On June 6, 1996, Fifth Third Bank of Southern Ohio (“Fifth Third”), a secured creditor, filed a Memorandum in Support of the Objection of the United States Trustee as it Pertains to Security Arrangement for Fees to be Paid to Taft, Stettinius & Hollister. On June 10, 1996, TS & H filed a Reply opposing Fifth Third’s Objection on both procedural and substantive grounds. The issue presented in this case concerns whether the Court should, or is in fact, authorized to approve the fee arrangement offered by the Debtor towards retention of the TS & H law firm to represent it in this Chapter 11, pursuant to Bankruptcy Code §§ 328, 330, and 331. At the hearing, counsel for Debtor stated that this Chapter 11 petition was filed under exigent circumstances to prevent the IRS from levying upon Debtor’s real property. The Debtor’s attorney further indicated that it is improbable that Debtor could have found experienced counsel willing to risk representing it without payment of a more substantial monetary retainer. Indeed, according to Mr. Lerner, before TS & H agreed to provide representation under the terms of the current compensation proposal, Debtor considered but ultimately decided against taking the ease to another law firm partly because Debtor was unable to pay a $25,000 retainer required by that firm. Mr. Lerner maintains that business debtors in need of Chapter 11 relief will find it more difficult to find able counsel to" }, { "docid": "15929730", "title": "", "text": "making such an award. In re Perviz, 302 B.R. 357, 373 (Bankr.N.D.Ohio 2003). See also In re Barboza, 211 B.R. 450 (Bankr.D.R.I.1997) (for stay violations, punitive awards are reserved for cases in which violator’s conduct amounts to something more than bare violation justifying compensatory damages or injunctive relief.). Generally speaking then, cases in which punitive damages have been awarded involve conduct that is egregious, vindictive or intentionally malicious. See, e.g., In re Clayton, 235 B.R. 801, 811 (Bankr.M.D.N.C.1998). In the instant matter, Fifth Third Bank’s conduct cannot be said to rise to such a high level of culpability; of importance, once confronted with its transgression, Fifth Third Bank took immediate steps to rectify the situation. Still, by § 362(h)’s use of the words “appropriate circumstances,” as opposed to any reference to the transgressor’s state of mind, a high level of culpable intent is not necessarily a prerequisite to an award of punitive damages. To hold otherwise, besides running counter to the plain-meaning approach repeatedly applied by the Supreme Court of the United States when interpreting the Bankruptcy Code, would also run counter to the purpose underlying the existence of punitive damages in general: To deter similar conduct in the future. In re Baggs, 283 B.R. at 729. Therefore, even in the absence of any overt wrongful intent, this Court will follow the rule, as has been applied by other courts, that an award of punitive damages may still be appropriate for a violation of the automatic stay when there is a strong showing that the creditor acted in bad faith or otherwise undertook their actions in reckless disregard of the law. In re Gullett, 230 B.R. 321 (Bankr.S.D.Tex.1999), order rev’d on other grounds, 253 B.R. 796 (S.D.Tex. 1999), aff'd, 220 F.3d 585 (5th Cir.2000); In re Gagliardi, 290 B.R. 808, 820 (Bankr. D.Colo.2003); In re Barboza, 211 B.R. 450, 452-53 (Bankr.D.R.I.1997). Upon implementation of this standard, there exists one salient feature in this matter: When informed that the Debtor’s property was vacant, Fifth Third Bank did not take any steps to verify the information, such as by contacting the Debtor’s" }, { "docid": "1064637", "title": "", "text": "full extent permitted under 28 U.S.C. § 1334 and 28 U.S.C. § 157 ...” See Plan, Art. 15.1, p. 24. . The corporate denudement claim was only recently added by amendment. In addition, the Plan Agent has moved to amend the complaint to add a claim for breach of contract against Banks and its principal, William Banks. That motion has been opposed and argued, and is currently under advisement. . The Fifth Circuit has drawn a distinction between ownership of a D & O policy and ownership of its proceeds in certain circumstances. See In re Louisiana World Exposition, Inc., 832 F.2d 1391 (5th Cir.1987). In Louisiana World Exposition, the issue was whether the proceeds of a liability policy owned by a bankrupt debtor which provided liability coverage exclusively for its directors and officers and which provided that proceeds were payable only to them were property of the debtor’s estate. The Fifth Circuit drew a distinction between ownership of the policy and ownership of the proceeds, and held that the proceeds were not property of the debtor's estate. The Fifth Circuit has stated that \"[t]he overriding question when determining whether insurance proceeds are property of the estate is whether the debtor would have a right to receive and keep those proceeds when the insurer paid on a claim.” Houston v. Edgeworth (In re Edgeworth), 993 F.2d 51, 55 (5th Cir.1993) (holding that proceeds of malpractice insurance policy owned by chapter 7 debtor were not property of the chapter 7 estate, since proceeds could not be made available for distribution to creditors other than victims of medical malpractice and their relatives and there was no allegation that the policy limit was insufficient to cover competing claims to proceeds). The Fifth Circuit jurisprudence on the distinction between ownership of a policy and ownership of its proceeds has been described as ''muddled” and a \"thicket,” American Nuclear Insurers v. Babcock and Wilcox Co., No 01-2751, 2002 WL 1334882 at *4 (E.D.La. June 14, 2002), and the Fifth Circuit itself recognizes that its distinction has not been broadly applied. The Fifth Circuit has concluded," }, { "docid": "15929724", "title": "", "text": "DECISION AND ORDER RICHARD L. SPEER, Bankruptcy Judge. This cause comes before the Court after a Hearing on the Debtor’s Motion to Show Cause why Fifth Third Bank, a secured creditor in this case, should not be held in contempt for violating the automatic stay of 11 U.S.C. § 362(a). After considering the arguments presented by the Parties, the Court finds that the Debtor’s position has merit, and thus, as sought in her Motion, sanctions in the form of monetary damages will be imposed against Fifth Third Bank. Beginning with the relevant facts of this case, the basis for the Court’s decision is set forth below. As security for a note executed by the Debtor, Fifth Third Bank holds a first, mortgage lien against the Debtor’s residence; both the note and the mortgage list the address of the residence as 618 Ogden, Toledo, Ohio. In September of 2001, the Debtor, Cheryl Bivens, filed a petition in this Court for relief under Chapter 13 of the United States Bankruptcy Code. Included in and handled by her Chapter 13 plan of reorganization, which was confirmed by this Court in December of 2001, was the Debtor’s mortgage debt on her residence. In both her petition and her plan of reorganization, the Debtor listed the address of her residence as 618 Ogden, Toledo, Ohio 43609. In addition, since the commencement of this case, all notices sent by the Court to Fifth Third Bank listed the 618 Ogden address as the Debt- or’s mailing address. In early 2004, during the pendency of her plan of reorganization, and for reasons that are not entirely clear, Fifth Third Bank came under the erroneous belief that the Debtor had physically vacated her residence. Based on this belief, Fifth Third Bank, in accordance with their internal procedures, contacted the Debtor’s insurance company so as to make appropriate arrangements for this change of circumstances, specifically, seeking to have adjustments made in coverage so as provide indemnity for vandalism and malicious mischief during the period of vacancy. (Doc. 130, Ex. A). Fifth Third Bank then sought to accomplish notice of its" } ]

[ { "docid": "19551901", "title": "", "text": "that the requirement of Rule 4(k)(2)(A) -that defendant is not subject to jurisdiction in any state's courts of general jurisdiction-is not met. Given our holding in Adams that plaintiffs do not have a general burden to negate jurisdiction in every state, the burden to establish that there was a state meeting the criteria necessarily must fall on the defendant. 364 F.3d at 651 (\"Rather, so long as a defendant does not concede to jurisdiction in another state, a court may use 4(k)(2) to confer jurisdiction.\") Thus, Nagravision had the initial burden to plead and prove the requisite contacts with the United States and plead Rule 4(k)(2)'s applicability (though no need for \"magic words\"), but it had no burden to negate jurisdiction in every state. Between Nagravision's allegations, the evidence attached to its motion for default judgment, and our holding in Adams , there is no doubt that the district court correctly (if only impliedly) found that Nagravision had met its burden giving the district court the personal jurisdiction over Gotech necessary to render the default judgment. See Sys. Pipe & Supply, Inc. v. M/V VIKTOR KURNATOVSKIY , 242 F.3d 322, 324 (5th Cir. 2001) (holding that, because \"a judgment entered without personal jurisdiction is void,\" district courts have the duty to independently confirm their \"power to enter a valid default judgment\"); Wooten v. McDonald Transit Assocs., Inc. , 788 F.3d 490, 500 (5th Cir. 2015) (explaining that, in considering whether to enter a default judgment, evidence can be used to further support allegations in the complaint). The burden then shifted to Gotech when it challenged the judgment to do more than just criticize Nagravision's complaint. Gotech had to affirmatively establish that the court lacked personal jurisdiction under 4(k)(2) because there was a state where its courts of general jurisdiction could properly exercise jurisdiction over it. See Adams , 364 F.3d at 650. Gotech did nothing of the kind. At most, it alleged that California was a state of such jurisdiction, but it did nothing to prove that the district court's implied finding was wrong making the judgment void. Accordingly, the" } ]

[ { "docid": "14407067", "title": "", "text": "P. 4(k)(2). The Court first reviews the evolving legal principles governing the exercise of personal jurisdiction under the Due Process Clauses of the Fourteenth and Fifth Amendments before examining, as required under Rule 4(k)(2), “whether [this] defendant has sufficient contacts with the United States as a whole to justify the exercise of personal jurisdiction under the Due Process Clause of the Fifth Amendment.” Mwani, 417 F.3d at 11. In making that examination, the Court must heed the caution that “ ‘great care and reserve should be exercised when extending our notions of personal jurisdiction into the international field.’ ” Fed. R. Crv. P. 4(k) advisory committee’s note (1993) (quoting Asahi Metal Indus. v. Super. Ct. of Cal., Solano Cnty, 480 U.S. 102, 115, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (internal quotation marks omitted). 1. Personal Jurisdiction Principles In cases involving foreign corporations, such as Defendant RCH, “United States courts may not exercise personal jurisdiction over a foreign corporation unless the corporation has ‘minimum contacts’ with the relevant forum.” GSS Grp. Ltd. v. Nat’l Port Auth., 680 F.3d 805, 817 (D.C.Cir.2012) (citing Goodyear Dunlop Tires Ops., S.A. v. Brown (Goodyear), — U.S.-,-, 131 S.Ct. 2846, 2853, 180 L.Ed.2d 796 (2011)). “Minimum contacts” are the touchstone of personal jurisdiction, of which there aré two types: specific and general. See Goodyear, 131 S.Ct. at 2851. Specific jurisdiction is present when the court “exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum.” Helicopteros Nacionales de Colombia, S.A. v. Hall (Helicopteros), 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); see also J. McIntyre Mach., Ltd. v. Nicastro, — U.S. -, -, 131 S.Ct. 2780, 2787-88, 180 L.Ed.2d 765 (2011) (“Where a defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws, it submits to the judicial power of an otherwise foreign sovereign to the extent that power is exercised in connection with the defendant’s activities touching on the State.”) (internal quotation marks and citation" }, { "docid": "13215178", "title": "", "text": "Elecs. for Imaging, Inc. v. Coyle, 340 F.3d 1344, 1349 (Fed.Cir. 2003). In evaluating whether Touchcom has met its burden, we accept the uncontroverted allegations in Touchcom’s complaint as true and resolve any factual conflicts in Touchcom’s favor. Id. Courts may exercise personal jurisdiction over defendants on either of two bases: general or specific jurisdiction. Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com. de Equip. Medico, 563 F.3d 1285, 1297 (Fed.Cir.2009). General jurisdiction “requires that the defendant have ‘continuous and systematic’ contacts with the forum state and confers personal jurisdiction even when the cause of action has no relationship with those contacts.” Silent Drive, Inc. v. Strong Indus., Inc., 326 F.3d 1194, 1200 (Fed.Cir.2003) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Because Touch-com does not appeal the district court’s conclusion that it lacked general jurisdiction, we will limit our discussion to specific jurisdiction. B. Specific Jurisdiction Analysis of personal jurisdiction in federal court begins with Rule 4 of the Federal Rules of Civil Procedure. Synthes, 563 F.3d at 1293 (citing Fed. R. Civ.P. 4; Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S. Ct. 404, 98 L.Ed.2d 415 (1987)). Rule 4(k)(l)(A) states that service of process establishes jurisdiction over a defendant “who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” Fed. R.Civ.P. 4(k)(l)(A). Pursuant to Rule 4(k)(l)(A), a federal court addressing personal jurisdiction over a defendant approaches such an inquiry by analyzing the long-arm statute and governing principles of the forum state. See id.; see also CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285, 292 (4th Cir.2009) (“[A] federal court assessing such a jurisdictional issue borrows and applies the applicable long-arm statute and governing principles from the forum state.”). Rule 4(k)(2), on the other hand, establishes jurisdiction over a defendant when process has been served and three requirements are met: “(1) the plaintiffs claim arises under federal law, (2) the defendant is not subject" }, { "docid": "8865322", "title": "", "text": "methods of discovery.” Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir.1985). QTI contends that it presented a prima facie case for specific jurisdiction under Federal Rule of Civil Procedure 4(k)(2). Rule 4(k)(2) states: If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state. “Rule 4(k)(2) thus sanctions personal jurisdiction over foreign defendants for claims arising under federal law when the defendant has sufficient contacts with the nation as a whole to justify the imposition of United States’ law but without sufficient contacts to satisfy the due process concerns of the long-arm statute of any particular state.” World Tanker Carriers Corp. v. M/V Ya Mawlaya, 99 F.3d 717 720 (5th Cir.1996) (emphasis omitted). “The due process required in federal cases governed by Rule 4(k)(2) is measured with reference to the Fifth Amendment, rather than the Fourteenth Amendment.” Submersible Sys., Inc. v. Perforadora Central, S.A., 249 F.3d 413, 420 (5th Cir.2001). Furthermore, “[sjpecific jurisdiction over a nonresident corporation is appropriate when the corporation has purposefully directed its activities at the forum state and the litigation results from alleged injuries that arise out of or relate to those activities.” Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir.2000) (internal quotations omitted). In this case, there is no dispute that QTI’s trademark infringement claims arise under federal law and neither side has claimed that Sage Group is subject to the jurisdiction of the courts of any state. Thus, the only issue is whether exercise of jurisdiction is “consistent with the Constitution and laws of the United States.” Fed. R. Civ. PRO. 4(k)(2). In order to determine whether the exercise of jurisdiction satisfies the Fifth Amendment, we must conduct the “now familiar minimum contacts analysis ... to determine whether the assertion of personal jurisdiction would offend" }, { "docid": "22473241", "title": "", "text": "Process Clause of the Fourteenth Amendment. See Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th Cir.1999). “The Due Process Clause ... permits the exercise of personal jurisdic tion over a nonresident defendant when (1) that defendant has purposefully availed himself of the benefits and protections of the forum state by establishing ‘minimum contacts’ with the forum state; and (2) the exercise of jurisdiction over that- defendant does not offend ‘traditional notions of fair play and substantial justice.’ ” Id. at 336 (quoting Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir.1999) (in turn quoting International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945))). “Minimum contacts” can be established either through contacts sufficient to assert specific jurisdiction, or contacts sufficient .to assert general jurisdiction. See Wilson, 20 F.3d at 647. Specific jurisdiction over a nonresident corporation is appropriate when that corporation has purposefully directed its activities at the forum state and the “litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). General jurisdiction, on the other hand, will attach where the nonresident defendant’s contacts with the forum state, although not related to the plaintiffs cause of action, are “continuous and systematic.” Helicopteros, 466 U.S. at 415-16, 104 S.Ct. 1868. When, as here, the district court conducted no evidentiary hearing, the party seeking to assert jurisdiction must present sufficient facts as to make out only a prima facie case supporting jurisdiction. See Felch v. Transportes Lar-Mex SA De CV, 92 F.3d 320, 326 (5th Cir.1996). We must accept as true that party’s uncontroverted allegations, and resolve in its favor all conflicts between the facts contained in the parties’ affidavits and other documentation. See Guidry v. United States Tobacco Co., 188 F.3d 619, 625-26 (5th Cir.1999); Latshaw v. Johnston, 167 F.3d 208, 212 (5th Cir.1999); Ruston Gas Turbines, Inc. v. Donaldson Co.," }, { "docid": "20638295", "title": "", "text": "The “constitutional touchstone” of the inquiry to determine if personal jurisdiction can be exercised is whether the defendant “purposefully established minimum contacts in the forum State.” Asahi Metal Ind. Co. v.Super. Ct., 480 U.S. 102, 108-09, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Personal jurisdiction can be general or specific. If a defendant’s contacts with the forum state are “continuous and systematic,” a court may exercise general jurisdiction over any action brought against that defendant, regardless of whether the action is related to the forum contacts. Helicopteros, 466 U.S. at 414-15, 104 S.Ct. 1868. If a defendant has relatively few contacts, a court may still exercise specific jurisdiction “in a suit arising out of or related to the defendant’s contacts with the forum.” Id. at 414 & n. 8, 104 S.Ct. 1868. It is not disputed that HAI and Camus lack sufficient contacts to justify general jurisdiction; only specific jurisdiction is at issue. We articulated a three-step analysis for the specific jurisdiction inquiry in Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374 (5th Cir.2002): (1) whether the defendant has minimum contacts with the forum state, i.e., whether it purposely directed its activities toward the forum state or purposefully availed itself of the privileges of conducting activities there; (2) whether the plaintiffs cause of action arises out of or results from the defendant’s forum-related contacts; and (3) whether the exercise of personal jurisdiction is fair and reasonable. Id. at 378 (citing Burger King, 471 U.S. at 474, 105 S.Ct. 2174). If the plaintiff successfully satisfies the first two prongs, the burden shifts to the defendant to defeat jurisdiction by showing that its exercise would be unfair or unreasonable. Id. at 382. III. The Mississippi long-arm statute permits the exercise of personal jurisdiction over both defendants. It is not disputed that the injury, James Seiferth’s death, occurred in Mississippi. He fell from a platform that had been transported to the state by Camus and inspected by him there, and the platform was attached" }, { "docid": "1546686", "title": "", "text": "317 F.3d 467, 469 (5th Cir. 2002). “The plaintiff bears the burden of establishing jurisdiction, but need only present prima facie evidence.” Id. We “must accept the plaintiffs uncontroverted allegations, and resolve in [his] favor all conflicts between the facts contained in the parties’ affidavits and other documentation.” Id. (alteration in original) (internal quotation marks omitted). III. Patterson argues that the district court erred by dismissing Aker Subsea because, in his view, it has sufficient contacts with the United States to establish general personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2). Patterson contends that over a three-year period, Aker Subsea entered into eleven secondment agreements whereby it would assign its employees to an American affiliate in Houston, Texas. Under the secondment agreements, the employees sent to the United States remained employees of Aker Subsea. To Patterson, this shows continuous and systematic contacts in the United States sufficient to assert general jurisdiction over Aker Subsea. Federal Rule of Civil Procedure 4(k)(2) “provides for service of process and personal jurisdiction in any district court for cases arising under federal law where the defendant has contacts with the United States as a whole sufficient to satisfy due process concerns and the defendant is not subject to jurisdiction in any particular state.” Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 650 (5th Cir. 2004). Here, the dispute is whether Aker Subsea has sufficient contacts with the United States to satisfy due process. “The due process required in federal cases governed by Rule 4(k)(2) is measured with reference to the Fifth Amendment, rather than the Fourteenth Amendment. That is, Rule 4(k)(2) requires us to consider [Aker Subsea’s] contacts with the United States as a whole.... ” Submersible Sys., Inc. v. Perforadora Cent., S.A. de C.V., 249 F.3d 413, 420 (5th Cir. 2001). Thus, to assert general personal jurisdiction under Rule 4(k)(2), Aker Subsea’s contacts with the United States must be so continuous and systematic as to render it essentially at home in the United States. See id.; Daimler AG v. Bauman, — U.S. —, 134 S.Ct. 746, 761, 187 L.Ed.2d 624 (2014) (“[T]he" }, { "docid": "22596371", "title": "", "text": "Felch v. Transportes Lar-Mex S.A. De CV 92 F.3d 320, 324 (5th Cir.1996). When a nonresident defendant challenges personal jurisdiction, the plaintiff bears the burden of establishing the district court's jurisdiction over the defendant. See Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.1994). We conclude the district court did not err in dismissing the defendants for lack of personal jurisdiction. A federal court sitting in diversity may exercise personal jurisdiction over a nonresident defendant if (1) the long-arm statute of the forum state confers personal jurisdiction over that defendant; and (2) exercise of such jurisdiction by the forum state is consistent with due process under the United States Constitution. See Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir.1999). Because Texas's long-arm statute has been interpreted to extend to the limits of due process, we only need to determine whether subjecting AAAA and Middlebrook to suit in Texas would be consistent with the Due Process Clause of the Fourteenth Amendment. See Electrosource, Inc. v. Horizon Battery Technolo gies, Ltd., 176 F.3d 867, 871 (5th Cir.1999) (citing Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990)). The Due Process Clause of the Fourteenth Amendment permits the exercise of personal jurisdiction over a nonresident defendant when (1) that defendant has purposefully availed himself of the benefits and protections of the forum state by establishing \"minimum contacts\" with the forum state; and (2) the exercise of jurisdiction over that defendant does not offend \"traditional notions of fair play and substantial justice.\" Latshaw, 167 F.3d at 211 (quoting International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). The \"minimum contacts\" aspect of the analysis can be established through \"contacts that give rise to `specific' personal jurisdiction or those that give rise to `general' personal jurisdiction.\" Wilson, 20 F.3d at 647. Specific jurisdiction exists when the nonresident defendant's contacts with the forum state arise from, or are directly related to, the cause of action. See id. (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404" }, { "docid": "23379305", "title": "", "text": "notion of presence in the forum state, are nonetheless “continuous and systematic.” Trierweiler, 90 F.3d at 1533 (quoting Helicopteros Nacionales de Colombia, S.A v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 1873, 80 L.Ed.2d 404 (1984)); Burger King, 471 U.S. at 473 n. 15, 105 S.Ct. at 2182 n. 15; Dobbs v. Chevron U.S.A., Inc., 39 F.3d 1064, 1068 (10th Cir.1994); Kennedy v. Freeman, 919 F.2d 126, 128 n. 2 (10th Cir.1990). Where “[gjeneral jurisdiction lies ... the state may exercise personal jurisdiction over the defendant, even if .the suit is unrelated to the defendant’s contacts with the state.” Trierweiler, 90 F.3d at 1533. “Whether a non-resident defendant has the requisite minimum contacts with the forum state to establish in personam jurisdiction must be decided on the particular facts of each case.” Shanks, 668 F.2d at 1166. “The plaintiff bears the burden of establishing personal jurisdiction over the defendant.” Behagen v. Amateur Basketball Ass’n of the United States, 744 F.2d 731, 733 (10th Cir.1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 1879, 85 L.Ed.2d 171 (1985). As is the case here, “when a motion to dismiss for lack of jurisdiction is decided qn the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing.” Id. ‘We resolve all factual disputes in favor of the plaintiff,” and “review[ ] the district court’s ruling ... de novo.” Far West Capital, 46 F.3d at 1075. III. Although the district court held it had in personam jurisdiction over Tyrolia without specifying whether that jurisdiction was specific or general, it applied a specific jurisdiction analysis, as do both parties in their appellate briefs. We will therefore first consider whether Tyrolia is properly subject to specific jurisdiction in Wyoming. A. Specific Jurisdiction “Specific jurisdiction may be exercised where the defendant has ‘purposefully directed’ its activities toward the forum jurisdiction and where the underlying action is based upon activities that arise out of or relate to the defendant’s contacts with the forum.” In re Application to Enforce Administrative Subpoenas Duces Tecum of S.E.C. v. Knowles, 87 F.3d 413, 418 (10th" }, { "docid": "3407864", "title": "", "text": "courts of general jurisdiction of any state. Fed.R.Civ.P. 4(k)(2). The PA defendants strenuously argue that plaintiffs cannot establish personal jurisdiction pursuant to Rule 4(k)(2) because plaintiffs cannot show that this Court’s exercise of personal jurisdiction over the individual PA defendants would be consistent with the United States Constitution. The PA defendants’ argument is based in large part on United States v. Swiss Am. Bank, Ltd., 191 F.3d 30 (1st Cir.1999), wherein the First Circuit delineated the circumstances under which a plaintiff may utilize Rule 4(k)(2) to establish personal jurisdiction over a defendant. By its terms, Rule 4(k)(2) requires that the following factors be present: (1) the plaintiffs claim must arise under federal law, (2) no state court of general jurisdiction can have personal jurisdiction over the putative defendant, and (3) the federal court’s exercise of personal jurisdiction over the defendant must be consistent with the Constitution or other federal law. Id. at 38; Fed.R.Civ.P. 4(k)(2). However, the First Circuit recognized that requiring a plaintiff to prove the so-called “negation prong” (that the defendant is beyond the reach of any state court of general jurisdiction), “in effect requires a plaintiff to prove a negative fifty times over—an epistemological quandary which is compounded by the fact that the defendant typically controls much of the information needed to determine the existence and/or magnitude of its contacts with any given jurisdiction.” Swiss American, 191 F.3d at 40. Accordingly, the court of appeals devised the following burden-shifting framework. As a initial matter, a plaintiff seeking to invoke Rule 4(k)(2) must make out a prima facie case for applicability of the rule. Plaintiffs prima facie case consists of three elements: (1) the claim arises under federal law, (2) no situation-specific federal statute confers personal jurisdiction over the defendant, and (3) the defendant’s contacts with the nation as a whole are sufficient to comply with the constitutional requirements of due process and minimum contacts. Id. at 41. In addition, plaintiff must certify that “based on the information that is readily available to the plaintiff and his counsel, the defendant is not subject to suit in the courts" }, { "docid": "12028424", "title": "", "text": "that the district court’s assertion of specific personal jurisdiction infringes its Fifth Amendment right to due process of law. To that effect, Pueblo argues that its contacts with the United States were insufficient to satisfy the minimum contacts analysis required by the constitutional due process guarantee. Citing Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997), Pueblo ar gues initially that its website is merely a “passive” site, which serves as nothing more than a virtual billboard, and that its other contacts were isolated and temporally sporadic. Pueblo raises two other points that, it submits, weigh heavily against the exercise of personal jurisdiction: (1) the relationship between Oldfield’s alleged injuries and Pueblo’s contacts with the forum is too attenuated; and (2) haling it into court in this matter would offend the concept of fundamental fairness. If Pueblo carries the day on any of these three points, it is not amenable to suit in the United States with respect to Oldfield’s claim. The exercise of personal jurisdiction comports with due process if the non-resident defendant has established “certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984) (internal quotation marks omitted) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). In cases such as this, where a federal court invokes Rule 4(k)(2), “the applicable forum for the minimum contacts analysis is the United States.” Consol. Dev. Corp., 216 F.3d at 1291 n. 6. To permit the exercise of specific jurisdiction, there must first exist “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum ..., thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Secondly, the defendant’s contacts with the forum must relate to the plaintiffs cause of action or have given rise to" }, { "docid": "12028425", "title": "", "text": "non-resident defendant has established “certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984) (internal quotation marks omitted) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). In cases such as this, where a federal court invokes Rule 4(k)(2), “the applicable forum for the minimum contacts analysis is the United States.” Consol. Dev. Corp., 216 F.3d at 1291 n. 6. To permit the exercise of specific jurisdiction, there must first exist “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum ..., thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Secondly, the defendant’s contacts with the forum must relate to the plaintiffs cause of action or have given rise to it. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985); SEC v. Carrillo, 115 F.3d 1540, 1542 (11th Cir.1997); accord Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir.2004). These dual requirements are the constitu tional benchmarks of the minimum contacts analysis and ensure that a defendant is only burdened with litigation in a forum where his “conduct and connection with the forum ... are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980); see Associated Transp. Line, Inc. v. Productos Fitosanitarios Proficol El Carmen, S.A., 197 F.3d 1070, 1074 (11th Cir.1999). As the Supreme Court explained, By requiring that individuals have fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign, the Due Process Clause gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as" }, { "docid": "5807861", "title": "", "text": "litigation must be pervasive in order to support the exercise of personal jurisdiction under Rule 4(k)(2).” Associated Transp. Line, Inc. v. Productos Fitosanitarios Proficol El Carmen, S.A., 197 F.3d 1070, 1075 (11th Cir.1999) (emphasis omitted). When a defendant’s contacts with the United States are confined to intermittent purchases, limited self-promotion, and a few narrow relationships with American businesses, the exercise of nationwide general jurisdiction over that defendant would “offend traditional notions of fair play and substantial justice,” Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868. We thus conclude that the contacts in this case were not sufficiently pervasive, continuous, and systematic to establish general jurisdiction over J&B Tours. 2. Specific Jurisdiction Under Rule mm The due process prerequisites to the exercise of specific jurisdiction over a defendant are less restrictive than the requirements for general jurisdiction. Sherritt, 216 F.3d at 1292. The minimum-contacts test for specific jurisdiction has three elements. First, the defendant must have contacts related to or giving rise to the plaintiffs cause of action. Second, the defendant must, through those contacts, have purposefully availed itself of forum benefits. Third, the defendant’s contacts with the forum must be such that it could reasonably anticipate being haled into court there. Sculptchair, 94 F.3d at 631. Although J&B Tours’ contacts with the United States demonstrate its propensity to avail itself of certain forum goods, services, and advertising, “a fundamental element of the specific jurisdiction calculus is that plaintiffs claim must ‘arise out of or relate to’ at least one of defendant’s contacts with the forum.” Oldfield, 558 F.3d at 1222 (quoting Burger King, 471 U.S. at 472, 105 S.Ct. 2174). In other words, “our inquiry must focus on the direct causal relationship among ‘the defendant, the forum, and the litigation.’ ” Id. (quoting Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868). We conclude that the Frasers have not established the necessary relationship between their claims and J&B Tours’ contacts with the United States. We have not developed a specific approach to determining whether a defendant’s contacts “relate to” the plaintiffs claims, but we recently held that “[n]ecessarily, the contact must" }, { "docid": "22881807", "title": "", "text": "of a single, major creditor and Texas resident under agreements that center around Texas. 1. Standard of review We review the district court’s exercise of personal jurisdiction de novo. See Submersible Sys., Inc. v. Perforadora Cent., S.A. de C.V., 249 F.3d 413, 417-18 (5th Cir.2001). A federal court sitting in diversity may exercise personal jurisdiction over a non-resident defendant (1) as allowed under the state’s long-arm statute; and (2) to the extent permitted by the Due Process Clause of the Fourteenth Amendment. “Because the Texas long-arm statute extends to the limits of federal due process, the two-step inquiry collapses into one federal due process analysis.” Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 609 (5th Cir.2008). To satisfy the requirements of due process, the plaintiff must demonstrate: “(1) that the nonresident purposely availed himself of the benefits and protections of the forum state by establishing ‘minimum contacts’ with the state; and (2) that the exercise of jurisdiction does not offend ‘traditional notions of fair play and substantial justice.’ ” Id. (quoting Wilson v. Belin, 20 F.3d 644, 647 (5th Cir.1994)). “Jurisdiction may be general or specific.” Stroman Realty, Inc. v. Wercinski, 513 F.3d 476, 484 (5th Cir.2008). Specific jurisdiction exists when the plaintiffs claim against the non-resident defendant arises out of or relates to activities that the defendant purposefully directed at the forum state. Alpine View Co. v. Atlas Cop-co AB, 205 F.3d 208, 215 (5th Cir.2000) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). In contrast, general jurisdiction requires the defendant to have maintained “continuous and systematic” contacts with the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). The parties’ briefs conspicuously fail to address an important threshold question, namely, if and how procedural anomalies in Sagaponack’s and Weisman’s litigation of the jurisdictional question affect the evidentiary standard under which the district court’s jurisdictional ruling must be assessed. After Faraway amended its complaint to replead Sagaponack into the suit, Sagaponack and Weisman jointly moved to dismiss for" }, { "docid": "182737", "title": "", "text": "Cir.1990). Wisconsin may exercise either general or specific personal jurisdiction over nonresident defendants. Specific jurisdiction refers to “jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). General jurisdiction is proper when a defendant has “continuous and systematic general business contacts” with the forum. Id. at 416, 104 S.Ct. 1868. This type of jurisdiction allows a defendant to be amenable to suit within that forum regardless of the subject matter of the suit. Steel Warehouse has never alleged that Leach and McMicking have such continuous and systematic contacts with Wisconsin and in oral argument affirmatively waived any argument for general jurisdiction. We therefore focus on the exercise of specific jurisdiction. Under Wisconsin law, the jurisdictional question has two components. First, the plaintiff must establish that the defendants come within the grasp of the Wisconsin long-arm statute. See Logan Productions, Inc. v. Optibase, Inc., 103 F.3d 49, 52 (7th Cir.1996); Lincoln v. Seawright, 104 Wis.2d 4, 310 N.W.2d 596, 599 (1981); Marsh v. Farm Bureau Mut. Ins. Co., 179 Wis.2d 42, 505 N.W.2d 162, 165 (1993). If the plaintiff is successful, the burden switches to the defendants to show that jurisdiction would violate due process. See Logan Productions, 103 F.3d at 52; Lincoln, 310 N.W.2d at 599. The parties in this case focus their attention on the due process question; we will therefore assume for the purpose of analysis that Leach and McMicking come within the grasp of the Wisconsin long-arm statute. Due process requires that the defendants have “purposefully established minimum contacts within the forum State.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-77, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). “Crucial to the minimum contacts analysis is showing that the defendant should reasonably anticipate being haled into court [in the forum State] ... because the defendant has purposefully availfed] itself of the privilege of conducting activities there.” RAR Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1277 (7th Cir.1997)" }, { "docid": "3851337", "title": "", "text": "of general jurisdiction of any state. If the plaintiff makes out his prima facie case, the burden shifts to the defendant to produce evidence which, if credited, would show either that one or more specific states exist in which it would be subject to suit or that its contacts with the United States are constitutionally insufficient. Should the defendant default on its burden of production, the trier may infer that personal jurisdiction over the defendant is not available in any state court of general jurisdiction. Swiss II, 191 F.3d at 41-42 (internal citations omitted). As required by this newly articulated methodology, the government has certified that the defendants are not subject to suit in the courts of general jurisdiction of any state. See Pl.’s Mem. in Opp’n to Swiss Am.’s Mot. to Dismiss at 12. In their reply memoranda, the defendants make no effort to refute the government’s claim. Therefore, the defendants are “deemed to have conceded the negation issue, and the [government], to succeed in [its] Rule 4(k)(2) initiative, need only prove that [its] claim arises under federal law and that the defendant has contacts with the United States as a whole sufficient to permit a federal court constitutionally to exercise personal jurisdiction over it.” Swiss II, 191 F.3d at 42. Therefore, the only question for this Court to decide is whether to exercise personal jurisdiction over the Swiss American banks violates their constitutional rights under the Due Process Clause. More specifically, this Court must determine whether “the defendants have adequate contacts with the United States as a whole to support personal jurisdiction and [whether] an assertion of jurisdiction over them would be reasonable.” Id. at 45. Personal jurisdiction may take two forms — specific and general. See Helicppteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Phillips Exeter Acad. v. Howard Phillips Fund, 196 F.3d 284, 288 (1st Cir.1999). This well-established principle has been held to apply to the invocation of personal jurisdiction under Rule 4(k)(2). See AT & T Co. v. Compag- nie Bruxelles Lambert, 94 F.3d 586," }, { "docid": "8865323", "title": "", "text": "by Rule 4(k)(2) is measured with reference to the Fifth Amendment, rather than the Fourteenth Amendment.” Submersible Sys., Inc. v. Perforadora Central, S.A., 249 F.3d 413, 420 (5th Cir.2001). Furthermore, “[sjpecific jurisdiction over a nonresident corporation is appropriate when the corporation has purposefully directed its activities at the forum state and the litigation results from alleged injuries that arise out of or relate to those activities.” Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir.2000) (internal quotations omitted). In this case, there is no dispute that QTI’s trademark infringement claims arise under federal law and neither side has claimed that Sage Group is subject to the jurisdiction of the courts of any state. Thus, the only issue is whether exercise of jurisdiction is “consistent with the Constitution and laws of the United States.” Fed. R. Civ. PRO. 4(k)(2). In order to determine whether the exercise of jurisdiction satisfies the Fifth Amendment, we must conduct the “now familiar minimum contacts analysis ... to determine whether the assertion of personal jurisdiction would offend traditional notions of fair play and substantial justice.” World Tanker Carriers Corp., 99 F.3d at 723 (internal citations omitted). QTI contends that the following contacts with the United States establish grounds for specific jurisdiction over Sage Group: (1) Sage Group filed an opposition to QTI’s trademark application with the USPTO in which it asserted its use of the SAGE mark in commerce in the United States, including in its U.S. marketing efforts; (2) Sage Group retained a U.S. attorney to file the opposition and to negotiate with QTI; (3) Sage Group filed an intent-to-use application with the USPTO; (4) Sage Group contacted U.S. companies concerning its international re-branding efforts, including one trip to the U.S. by its Business Development Director; (5) Sage Group operated a web site, wiow.sage.com, which provided information about Sage Group, as well as links to its U.S. subsidiaries; and (6) Sage Group used the SAGE mark in publications circulated in the U.S. and added the SAGE mark to “product advertisements, boxes and brochures” used by its U.S. subsidiaries. Sage Group contends" }, { "docid": "16200232", "title": "", "text": "OJSC “Novokuznetsky Aluminum Factory”, 283 F.3d 208, 215 (4th Cir.2002). First, the suit must arise under federal law. Fed.R.Civ.P. 4(k)(2). Second, the defendant must not be subject to personal jurisdiction in any state. Id.; Base Metal Trading, 283 F.3d at 215. Third, the defendant must have contacts with the United States “consistent with the Constitution and laws of the United States.” Fed. R.Civ.P. 4(k)(2). We conclude that Keppel is not subject to jurisdiction under Rule 4(k)(2) because Captain Saudi has clearly not satisfied the third part of this test. New Wellington Fin. Corp., 416 F.3d at 294 (plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence). In the context of 4(k)(2), the requirement that Keppel’s contacts be “consistent with the Constitution and laws of the United States” is founded upon the Due Process Clause of the Fifth Amendment. See Mwani v. bin Laden, 417 F.3d 1, 11 (D.C.Cir.2005). This Clause ensures that a defendant has fair warning before it is subjected to the coercive power of a court. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (discussing the Due Process Clause of the Fourteenth Amendment). Thus, while Rule 4(k)(2) is designed to facilitate obtaining jurisdiction over foreign defendants, it does not operate to relax the requirement that the defendant’s contacts with the forum be constitutionally sufficient. Captain Saudi argues that Keppel is subject to both specific and general jurisdiction. A court may exercise specific jurisdiction “[w]hen the cause of action arises out of the defendant’s contacts with the forum.” Base Metal Trading, 283 F.3d at 213. General jurisdiction is available if Keppel’s contacts with the United States are “ ‘continuous and systematic.’ ” Id. (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Captain Saudi alleges jurisdictional contacts with New Jersey and Texas. First, he maintains that Marine Transport Lines (MTL), a New Jersey corporation, and its Chief Engineer, Richard Farman, oversaw the refurbishment of the S/T Marine Atlantic in Keppel’s Singapore shipyard in 1994. Specifically," }, { "docid": "15893649", "title": "", "text": "filing a waiver of service is also effective, ■with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state. Fed.R.Civ.Proc. 4(k)(2). Rule 4(k)(2) thus sanctions personal jurisdiction over foreign defendants for claims arising under federal law when the defendant has sufficient contacts with the nation as a whole to justify the imposition of United States’ law but without sufficient contacts to satisfy the due process concerns of the long-arm statute of any particular state. World Tanker Carriers Corp. v. MV YA Mawlaya, 99 F.3d 717, 720 (5th Cir.1996). FCFC argues that while the District Court correctly found that FCFC did not have sufficient contacts with New Jersey to justify assertion of jurisdiction under the State’s long-arm statute, it incorrectly concluded (1) that BP’s cause of action arose under federal law, and (2) that FCFC had sufficient contacts with the United States as a whole to justify assertion of jurisdiction under Rule 4(k)(2). Because we agree that the District Court erred in concluding that FCFC’s contacts with the United States were sufficient to warrant the assertion of personal jurisdiction over it, we may assume, without deciding, that BP’s claim arises under federal law. Once FCFC moved to dismiss, BP had the burden of coming forth with competent evidence demonstrating that FCFC had sufficient contacts with the United States to justify the court’s assertion of either specific or general personal jurisdiction. See Stranahan Gear Co. v. NL Indus., Inc., 800 F.2d 53, 58 (3d Cir.1986). Specific personal jurisdiction exists when the defendant has “purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that ‘arise out of or related to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). General personal jurisdiction exists when the defendant’s contacts with the forum, whether or not related to the litigation, are “continuous and systematic.” Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868," }, { "docid": "17704196", "title": "", "text": "personal jurisdiction to comport with due process, the plaintiff must show that: (1) the defendant purposefully availed itself of the benefits and protections of the forum state by establishing “minimum contacts” with that state such that it would reasonably anticipate being haled into court there; and (2) exercising jurisdiction over the defendant would not offend traditional notions of fair play and substantial justice. Id. at 1068 (citations omitted). The “minimum contacts” prong of the due process analysis can be met through contacts giving rise to either specific or general jurisdiction. Gundle Lining Constr. Corp. v. Adams Cnty. Asphalt, Inc., 85 F.3d 201, 205 (5th Cir.1996). “General personal jurisdiction is found when the nonresident defendant’s contacts with the forum state, even if unrelated to the cause of action, are continuous, systematic, and substantial.” Marathon Oil Co. v. A.G. Ruhrgas, 182 F.3d 291, 295 (5th Cir.1999) (citation omitted). In contrast, specific personal jurisdiction is established through the defendant’s contacts with the forum state arising from, or related to, the cause of action. Gundle, 85 F.3d at 205. III. ANALYSIS Watts moves to dismiss the claims against it pursuant to Rule 12(b)(2) for lack of personal jurisdiction. Watts argues that the Court lacks specific personal jurisdiction because it did not purposefully direct any activities at Texas, do any business in Texas, “or otherwise have any contact with Texas.” (Doc. 27, Mot. 8.) Similarly, Watts contends that general personal jurisdiction is improper because it has not had any, much less continuous and systematic, contacts with Texas. (Id.) Plaintiffs respond that the Court has both specific and general personal jurisdiction over Watts because of its commercial efforts to sell its products to businesses and consumer in Texas. (Doc. 65, Resp. 7-8.) The Court will examine, in turn, Plaintiffs’ positions on specific and general personal jurisdiction to determine whether they have met their burden of establishing a prima facie case. A. Specific Personal Jurisdiction The Fifth Circuit applies a three-step analysis to determine whether specific personal jurisdiction over a defendant exists: (1) whether the defendant purposely directed its activities toward the forum state or purposely availed" }, { "docid": "1546687", "title": "", "text": "arising under federal law where the defendant has contacts with the United States as a whole sufficient to satisfy due process concerns and the defendant is not subject to jurisdiction in any particular state.” Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 650 (5th Cir. 2004). Here, the dispute is whether Aker Subsea has sufficient contacts with the United States to satisfy due process. “The due process required in federal cases governed by Rule 4(k)(2) is measured with reference to the Fifth Amendment, rather than the Fourteenth Amendment. That is, Rule 4(k)(2) requires us to consider [Aker Subsea’s] contacts with the United States as a whole.... ” Submersible Sys., Inc. v. Perforadora Cent., S.A. de C.V., 249 F.3d 413, 420 (5th Cir. 2001). Thus, to assert general personal jurisdiction under Rule 4(k)(2), Aker Subsea’s contacts with the United States must be so continuous and systematic as to render it essentially at home in the United States. See id.; Daimler AG v. Bauman, — U.S. —, 134 S.Ct. 746, 761, 187 L.Ed.2d 624 (2014) (“[T]he inquiry under [Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) ] is not whether a foreign corporation’s in-forum contacts can be said to be in -some sense ‘continuous and systematic,’ it is whether that corporation’s ‘affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.’ ”). The proper forum for exercising general jurisdiction over a corporation is one in which a corporation is fairly regarded at home. Goodyear, 564 U.S. at 924, 131 S.Ct. 2846 (citing Brilmayer et al., A General Look at General Jurisdiction, 66 Tex. L. Rev. 721, 782 (1988) (identifying place of incorporation and principal place of business as paradigm bases for the exercise of general jurisdiction)). Both Aker Subsea’s place of incorporation and principal place of business are in Norway. Thus, to exercise general jurisdiction here, these facts must yield what the Supreme Court has described as the “exceptional ease.” The record contains no evidence that Aker Subsea had any business" } ]

[ { "docid": "22939532", "title": "", "text": "the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12. Fed.R.Crim.P. 41(e). In its initial opinion the trial court decided the requirements of Fed.R.Crim.P. 12 applied and, because the motion was not made prior to Mora’s trial, that it was untimely filed under Rule 12(b). On reconsideration it recognized, as does the government on appeal, that it had jurisdiction — ancillary to its jurisdiction over the criminal ease — to decide this post-trial motion for the return of seized property. See United States v. Wilson, 540 F.2d 1100, 1103 (D.C.Cir.1976) (“the district court has both the jurisdiction and duty to return [seized] property”); United States v. LaFatch, 565 F.2d 81, 83 (6th Cir.1977); United States v. Palmer, 565 F.2d 1063, 1064 (9th Cir.1977). In addition, where no criminal proceedings against the movant are pending or have transpired, a motion for the return of property is “treated as [a] civil equitable proceeding^] even if styled as being pursuant to Fed.R.Crim.P. 41(e).” United States v. Martinson, 809 F.2d 1364, 1367 (9th Cir.1987); see also Mr. Lucky Messenger Service, Inc. v. United States, 587 F.2d 15, 16-17 (7th Cir.1978); Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir.1975). We presume the DEA keeps some sort of record of the property it seizes and stores. Department of Justice regulations provide: Each bureau shall be responsible for establishing and maintaining inventory records of its seized personal property to ensure that: (a) The date the property was seized'is recorded; (b) All of the property associated with a case is recorded together under the case name and number; (c) The location of storage of the property is recorded; (d) A well documented chain of custody is kept; and (e) All information in the" } ]

[ { "docid": "10556621", "title": "", "text": "claim on the merits. . Although the heading of the complaint reads \"42 U.S.C. § 1983,\" both parties refer to this complaint throughout the record as a motion under Fed.R.Crim.P. 41(e), which provides a method for return of seized property in a criminal case. Because criminal proceedings were no longer pending against Boero at the time of his district court filing, the complaint was construed by .the district court as a civil claim seeking return of the seized property. See Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir.1992) (\"Where criminal proceedings against the mov-ant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint.”). . 21 U.S.C. § 881 provides in pertinent part: (a) The following shall be subject to forfeiture to the United States and no property right shall exist in them: ****** (6) All moneys ... furnished or intended to be furnished by any person in exchange for a controlled substance ..., all proceeds traceable to such an exchange, and all moneys ... used or intended to be used to facilitate any violation of this subchapter.... (b) Any property subject to civil forfeiture to the United States under this subchapter may be seized by the Attorney General upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims by any district court of the United States having jurisdiction over the property.... ****** (d) The provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws ... shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any of the provisions of this subchap-ter .... . Department of Justice Directive No. 93-4, effective March 1, 1993, provides that under § 1607, interested parties known at the time of seizure must receive written notice within sixty days of the seizure. Where a reasonable effort to give notice has not been made within the sixty-day period and no waiver has been obtained, the seized property must be returned to the owner and the forfeiture proceeding" }, { "docid": "2063944", "title": "", "text": "adjudicated by the district court in the process of determining its jurisdiction, we review the court’s findings of fact for clear error_ Where the material facts are not in dispute, ... we review the district court’s determination that it lacks jurisdiction de novo.” Drevlow v. Lutheran Church, Mo. Synod, 991 F.2d 468, 470 (8th Cir.1993) (footnote and citation omitted). Post-conviction filings for the return of property seized in connection with a criminal case are treated as civil equitable actions, and the district court where the claimant was tried has subject-matter jurisdiction ancillary to its criminal jurisdiction to hear the equitable action. See Rufu, v. United States, 20 F.3d 63, 65 (2d Cir.1994) (per curiam) (district court where defendant tried has ancillary jurisdiction to decide post-trial motion for return of property; motion treated as civil complaint for equitable relief and court must make findings to identify items government still possesses, and then fashion relief); Mora v. United States, 955 F.2d 156, 158-59 (2d Cir.1992) (same). Thompson sought only the return of property seized in connection with his criminal case; therefore, we think that his suit amounted to such a civil equitable action. Because Thompson was tried in the District of Minnesota, the district court there would have ancillary jurisdiction over Thompson’s civil equitable action, and Thompson should have filed it there. See, e.g., United States v. Giovanelli, 998 F.2d 116, 118-19 (2d Cir.1993) (despite property being seized in another district, district court where defendant tried had ancillary equitable jurisdiction to hear post-conviction motion for return of property); United States v. Wingfield, 822 F.2d 1466, 1470 (10th Cir.1987) (federal court acquires jurisdiction over case in its entirety; district court has jurisdiction to enter orders ancillary to criminal proceedings concerning disposition of seized materials), cert. dismissed sub nom., Boulder County v. United States, 486 U.S. 1019, 108 S.Ct. 1762, 100 L.Ed.2d 222 (1988). We further note that the case is not mooted by the government’s assertion that it cannot find Thompson’s property. See Soviero v. United States, 967 F.2d 791, 792-93 (2d Cir.1992) (ease not moot where property destroyed because equitable jurisdiction of" }, { "docid": "8529654", "title": "", "text": "shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. Fed.R.Crim.P. 41(e). However, where the trial has concluded and there is no need for the property as evidence, Rule 41(e) is not the appropriate vehicle for seeking a return of property. In such a case, “the request for the return of the seized property is essentially a civil equitable proceeding, notwithstanding the fact that the motion was styled under Fed.R.Crim.P. 41(e).” United States v. Duncan, 918 F.2d 647, 654 (6th Cir.1990) (internal quotation and alterations omitted); accord United States v. Robinson, 78 F.3d 172, 174 (5th Cir.1996); United States v. Giraldo, 45 F.3d 509, 511 (1st Cir.1995); United States v. Woodall, 12 F.3d 791, 794 n. 1 (8th Cir.1993) (pro se pleading styled as a Rule 41(e) motion should be liberally construed as seeking to invoke the proper remedy where criminal proceedings have ended); Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir.1992) (‘Where criminal proceedings have already been completed, a district court should treat a rule [sic] 41(e) motion as a civil complaint.”); United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir.1987) (treating Rule 41(e) motion as “civil equitable proceeding[ ]” when criminal proceedings have been completed). Accordingly, the Court should construe petitioners’ motion for return of property as a civil complaint seeking to invoke the equitable powers of the Court. C. Jurisdiction to Consider Petitioners’ Claims 1. Jurisdiction Generally Construing petitioners’ pleading as a civil complaint, the Court must first determine whether it has jurisdiction to consider petitioners’ claims. Plaintiffs’ boat was administratively forfeited pursuant to the Tariff Act of 1930,19 U.S.C. §§ 1600-1619; see also 21 C.F.R. §§ 1316.75-1316.79, which applies to property relating to drug transactions pursuant to 21 U.S.C. § 881. As succinctly summarized by the First Circuit in Giraldo, supra: These laws provide that property worth $500,000 or less is subject to administrative forfeiture without judicial involvement." }, { "docid": "21044609", "title": "", "text": "of property under Fed.R.Crim.P. 41(e) and, if granted, to order appropriate relief is unchallenged by the parties. District courts have broad jurisdiction to entertain collateral due process attacks on administrative forfeitures. United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir.1987) (district court Las jurisdiction to hear motions to return property seized by the government when there are no criminal proceedings pending against the movant). See also United States v. Clagett, 3 F.3d 1355, 1356 (9th Cir.1993) (if notice to defendant of the pending administrative forfeiture was inadequate, that proceeding was “never available to him in any meaningful sense” and he is thus entitled to a ruling on his claim of inadequate notice); Marshall Leasing, Inc. v. United States, 893 F.2d 1096, 1102-03 (9th Cir.1990) (district court had jurisdiction over due process attack on forfeiture under 28 U.S.C. § 1331). Courts in other circuits have also addressed this question. See United States v. Garcia, 65 F.3d 17 (4th Cir.1995); United States v. Giraldo, 45 F.3d 509, 510 (1st Cir.1995); United States v. Woodall, 12 F.3d 791, 793 (8th Cir.1993); Willis v. United States, 787 F.2d 1089, 1093 (7th Cir.1986). The Court of Appeals for the Ninth Circuit has held that motions to return seized property, although fashioned under Fed. R.Crim.P. 41(e), are to be treated as “civil equitable proceedings” when there are no criminal proceedings pending against the movant. Martinson, 809 F.2d at 1367. See also Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir.1992) (“[wjhere criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint”). Defendant Marolf is currently serving his sentence for conviction in the underlying criminal case. All appeals have been exhausted and his motion to vacate his sentence in light of the forfeiture of the vessel has been concluded. Thus it is appropriate for the Court to rule on defendant’s Rule 41(e) motion and treat it as a civil equitable proceeding. The fact that the vessel is no longer available to be returned does not defeat this Court’s ability to effect an equitable" }, { "docid": "23050560", "title": "", "text": "of title in the United States. 19 U.S.C. § 1609. This declaration has the same effect as a final decree and order of forfeiture entered in a judicial proceeding. Id. Notwithstanding the above, district courts have jurisdiction to entertain collateral due process attacks on administrative forfeitures. United States v. Woodall, 12 F.3d 791, 793 (8th Cir.1993) (“the federal courts have universally upheld jurisdiction to review whether an administrative forfeiture satisfied statutory and due process requirements”). Whereas most challenges to forfeiture would be foreclosed by a plaintiffs’ [sic] failure to utilize the mechanism for obtaining judicial relief provided in the forfeiture statute and regulations, courts have entertained challenges to the adequacy of notice, reasoning that the mechanism is not available to a plaintiff who is not properly notified of the pending forfeiture. Sarit v. United States Drug Enforcement Admin., 987 F.2d 10, 17 (1st Cir.) (citations omitted), cert. denied, — U.S. -, 114 S.Ct. 241, 126 L.Ed.2d 195 (1993). We have indicated that such challenges may be pursued in a civil action under 28 U.S.C. § 1331. See United States v. Mosquera, 845 F.2d 1122, 1126 (1st Cir.1988) (per curiam). See also Marshall Leasing, Inc. v. United States, 893 F.2d 1096, 1102-03 (9th Cir.1990) (district court had jurisdiction over due process attack on forfeiture under § 1331); Willis v. United States, 787 F.2d 1089, 1093 (7th Cir.1986) (general federal question subject matter jurisdiction exists over constitutional challenge to forfeiture), cited in Sarit, 987 F.2d at 17. The fact that Giraldo termed his motion as one under Rule 41(e) does not defeat the district court’s jurisdiction. ‘Where criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint.” Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir.1992). See also United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir.1987) (motions to return property filed under Rule 41(e) are treated as “civil equitable proceedings” when criminal proceedings have been completed); cf. Woodall, 12 F.3d at 794 n. 1 (once criminal proceedings have ended, a pleading by a pro se plaintiff which" }, { "docid": "23399817", "title": "", "text": "Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). When the government can reasonably ascertain the name and address of an interested party, due process requires the government to send “[njotice by mail or other means as certain to ensure actual notice.” Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180 (1983). But due process does not require that the interested party actually receive the notice. United States v. 51 Pieces of Real Property, 17 F.3d 1306, 1316 (10th Cir.1994). “So long as the government ‘acted reasonably in selecting means likely to inform [the] persons affected, ... then it has discharged its burden.’ ” Id. (quoting Weigner v. City of New York, 852 F.2d 646, 649 (2d Cir.1988), cert. denied, 488 U.S. 1005, 109 S.Ct. 785, 102 L.Ed.2d 777 (1989)). Due process issues, which call for legal conclusions, are subject to de novo review. See Facet Enters. v. NLRB, 907 F.2d 963, 970 (10th Cir.1990). But the question of whether the FBI employed means that were reasonably calculated to provide Clark actual notice is a question of fact, which we review for clear error. See 51 Pieces of Real Property, 17 F.3d at 1316. Federal district courts have jurisdiction to review whether an administrative forfeiture satisfied due process and statutory requirements. United States v. Woodall, 12 F.3d 791, 793 (8th Cir.1993). Due process attacks on forfeiture proceedings may be pursued in a civil action under 28 U.S.C. § 1331. United States v. Giraldo, 45 F.3d 509, 511 (1st Cir.1995). But the fact that Clark brought his motion in the district court under Rule 41(e) does not defeat the district court’s jurisdiction to hear a due process challenge. Giraldo, 45 F.3d at 511. “Where criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint.” Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir.1992); United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir.1987). As a result, we construe Clark’s Rule 41(e) motion liberally, as seeking" }, { "docid": "23636276", "title": "", "text": "in July of 1992. Finally, Rufu’s Nigerian passport and resident alien card were sent to the INS. The district court concluded that Rufu’s property already had been returned and dismissed the action the same day it received the Government’s submissions. This appeal followed. DISCUSSION The district court where a defendant is tried has ancillary jurisdiction to decide the defendant’s post-trial motion for return of seized property. Soviero v. United States, 967 F.2d 791, 792 (2d Cir.1992). If made after the termination of criminal proceedings against the defendant, as is the case here, such a motion should be treated as a civil complaint for equitable relief. See Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir.1992) (motion pursuant to Fed. R.Crim.P. 41(e) should be treated as civil complaint); Mora v. United States, 955 F.2d 156, 160 (2d Cir.1992). That the Government has destroyed or otherwise disposed of the property sought by the movant does not render the motion moot, since the court has authority to award damages in lieu of the equitable relief sought. See Soviero, 967 F.2d at 792-93; Mora, 955 F.2d at 159-61. At the very least, the district court was required to take evidence and make factuál findings to identify any items still in the possession of the Government and any items that might have béen lost. The district court did not follow the proper procedure in this case, because it dismissed Rufu’s motion based on the letter and accompanying documents submitted by the Government. The Government did not file an answer, nor did it file a motion to dismiss. Rufu was not even given an opportunity to respond to the Government’s submission, since the district court denied Rufu’s motion the day it received the submission. Even if we could ignore the procedural defects in this case, we would be constrained to reverse because there was insufficient evidence for the district court to conclude that all of Rufu’s property had been returned. The Government contends that the luggage containing Rufu’s property was shipped to his designated representative. According to Rufu, his property consisted of a “Black sport" }, { "docid": "23209211", "title": "", "text": "returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12. On December 1, 2002, Fed.R.Crim.P. 41(e) was redesignated Fed.R.Crim.P. 41(g) without substantive change. See Fed.R.Crim.P. 41 Advisory Committee Note to the 2002 aménd-ments. The current rule provides: A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. Fed.R.Crim.P. 41(g) (2003). To avoid confusion, throughout this opinion, the court refers to the rule by its present designation, 41(g). . The district court noted the sovereign immunity issue in this case but considered itself bound by Mora v. United States, 955 F.2d at 160; Soviero v. United States, 967 F.2d 791, 792-93 (2d Cir.1992); and Rufu v. United States, 20 F.3d 63, 65 (2d Cir.1994), cases discussed infra at Section II.A. . The record contains no government inventory of the property seized from Adeleke at the time of his arrest, perhaps because these records, like the property, were destroyed when the World Trade Center collapsed. For purposes of this appeal, we accept Adeleke’s list of belongings and his value estimate. . Nothing in the record before this court explains the government’s reasons for not forfeiting the $1,000, based upon Adeleke’s alleged post-arrest admission that this money represented the first installment on his payment for smuggling the seized heroin: See 21 U.S.C. § 853(a)(1). . Although the Ninth Circuit, whose decision in United States v. Martinson, 809 F.2d 1364, 1368 (1987) (recognizing" }, { "docid": "23399818", "title": "", "text": "employed means that were reasonably calculated to provide Clark actual notice is a question of fact, which we review for clear error. See 51 Pieces of Real Property, 17 F.3d at 1316. Federal district courts have jurisdiction to review whether an administrative forfeiture satisfied due process and statutory requirements. United States v. Woodall, 12 F.3d 791, 793 (8th Cir.1993). Due process attacks on forfeiture proceedings may be pursued in a civil action under 28 U.S.C. § 1331. United States v. Giraldo, 45 F.3d 509, 511 (1st Cir.1995). But the fact that Clark brought his motion in the district court under Rule 41(e) does not defeat the district court’s jurisdiction to hear a due process challenge. Giraldo, 45 F.3d at 511. “Where criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint.” Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir.1992); United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir.1987). As a result, we construe Clark’s Rule 41(e) motion liberally, as seeking to invoke the proper remedy. Although the district court did not make a specific finding that the means employed by the FBI to give Clark notice were reasonable, we can infer such a finding from the district court’s ultimate holding that the notice to Clark was constitutionally adequate. See 51 Pieces of Real Property, 17 F.3d at 1316. When the government is aware that an interested party is incarcerated, due process requires the government to make an attempt to serve him with notice in prison. United States v. $184,505.01 in U.S. Currency, 72 F.3d 1160, 1163-64 (3d Cir.1995), petition for cert. filed, 64 U.S.L.W. 3669 (U.S. Mar. 28, 1996) (No. 95-1575); Giraldo, 45 F.3d at 511; Woodall, 12 F.3d at 794. The FBI mailed notice to Clark at the facility where he was incarcerated at the time. Clark admits that he was incarcerated at the Oklahoma County Jail when the FBI sent notice to him there. This means of service, by return-receipt, certified mail, was reasonably calculated to apprise Clark of the forfeiture action. We" }, { "docid": "2383539", "title": "", "text": "or omitted without the knowledge or consent of that owner. .The dollar amount has been raised to $500,000. See Pub.L. No. 101-382, § 122(1) and (6), 104 Stat. 642 (codified at 19 U.S.C. § 1607 (1988 & Supp. III 1991)). . Linarez also asserts, for the first time on appeal, that the district court had jurisdiction to adjudicate his complaint pursuant to 28 U.S.C. § 1331. By failing to present this argument to the district court, Linarez has waived it for purposes of this appeal. Gray v. Lacke, 885 F.2d 399, 409 (7th Cir.1989), cert. denied, 494 U.S. 1029, 110 S.Ct. 1476, 108 L.Ed.2d 613 (1990). . Rule 41(e) states: A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessaiy to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12. . Because there were no criminal proceedings against Linarez, his filing in the district court cannot be characterized as a Rule 41(e) motion. Federal Rule of Criminal Procedure 54(b)(5) forecloses this possibility by stating that the Federal Rules of Criminal Procedure \"are not applicable to ... civil forfeiture of property for violation of a statute of the United States.\" See United States v. Onwubiko, 969 F.2d 1392, 1397 (2d Cir.1992); United States v. Elias, 921 F.2d 870, 875 (9th Cir.1990). But see Floyd v. United States, 860 F.2d 999, 1002-03, 1006-07 (10th Cir.1988) (Rule 41(e) motions are governed by equitable principles and do not depend" }, { "docid": "22922967", "title": "", "text": "most challenges to forfeiture would be foreclosed by ... failure to utilize [the statutory mechanism], courts have entertained challenges to the adequacy of notice, reasoning that the mechanism is not available to a plaintiff who is not properly notified of the pending forfeiture.”). Further, those courts which have allowed limited judicial review of an administrative forfeiture proceeding on due process grounds have also ruled that a Rule 41(e) motion filed after criminal proceedings have terminated is an acceptable means of obtaining review. For example, the Court of Appeals for the First Circuit has held that “[w]here criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint.” United States v. Giraldo, 45 F.3d 509, 511 (1st Cir.1995) (internal quotation omitted). Other courts have agreed. See Weng v. United States, 137 F.3d 709, 711 n. 1 (2d Cir.1998) (same); United States v. Clark, 84 F.3d 378, 381 (10th Cir.1996) (same); Woodall, 12 F.3d at 794 n. 1 (holding that a Rule 41(e) motion filed by a pro se plaintiff after criminal proceedings have ended should be liberally construed as seeking to invoke the proper remedy); United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir.1987) (holding that a district court has jurisdiction over a motion to return property styled as a Rule 41(e) motion, and should treat such motion as a civil equitable proceeding). We find the reasoning of these cases persuasive and now hold that a district court has jurisdiction to consider a claim that a person received inadequate notice of completed administrative forfeiture proceedings, notwithstanding that the claim was styled as a Rule 41(e) motion and filed after criminal proceedings had been completed. Accordingly, we conclude that the District Court had jurisdiction to consider McGlory’s claim that he received inadequate notice of the DEA’s administrative forfeiture proceedings. III. We thus turn to the narrow issue before us on this appeal: whether a pretrial detainee in custody of the Marshals Service has a due process right to have notice of administrative forfeiture proceedings mailed by the forfeiting agency directly" }, { "docid": "10556620", "title": "", "text": "process violation in an administrative forfeiture proceeding. Compare Montgomery v. Scott, 802 F.Supp. 930, 937 (W.D.N.Y.1992) (where administrative forfeiture void for lack of notice, judgment set aside “without prejudice to the DEA commencing another administrative forfeiture proceeding consistent with the requirements of the law”) with Application of Mayo, 810 F.Supp. 121, 125 (D.Vt.1992) (where administrative forfeiture procedurally deficient for lack of notice, claimant entitled to equitable remedy of return of property). Boero was a prisoner in custody, having been transferred to his place of incarceration directly from a federal facility, and notice could easily have been given to him; the notice was indisputably inadequate and the district court has found (as the DEA conceded) that the DEA was responsible for the failure of notice. Under our prior rulings, Boero’s remedy is to restore his right to seek a hearing in district court, a right he evidently wishes to exercise. We therefore vacate the judgment to the extent that the DEA was directed to commence administrative forfeiture proceedings, and direct the district court to consider Boero’s claim on the merits. . Although the heading of the complaint reads \"42 U.S.C. § 1983,\" both parties refer to this complaint throughout the record as a motion under Fed.R.Crim.P. 41(e), which provides a method for return of seized property in a criminal case. Because criminal proceedings were no longer pending against Boero at the time of his district court filing, the complaint was construed by .the district court as a civil claim seeking return of the seized property. See Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir.1992) (\"Where criminal proceedings against the mov-ant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint.”). . 21 U.S.C. § 881 provides in pertinent part: (a) The following shall be subject to forfeiture to the United States and no property right shall exist in them: ****** (6) All moneys ... furnished or intended to be furnished by any person in exchange for a controlled substance ..., all proceeds traceable to such an exchange, and all moneys ... used" }, { "docid": "23113008", "title": "", "text": "consistent with this determination was entered on December 11,1991. Onwubiko timely filed a notice of appeal on December 13, 1991. DISCUSSION The district court should not have treated Onwubiko’s later filings as a motion for return of property under Fed. R.Crim.P. 41(e). Rule 41(e) provides a method for return of seized property and suppression of evidence in a criminal case. After the case is concluded, a property owner may have other rights under statutory or common law for return of property wrongfully seized, but he has no such right under rule 41(e) after conviction. United States v. Price, 914 F.2d 1507, 1511 (D.C.Cir.1990) (per curiam); United States v. Hernandez, 911 F.2d 981, 983 (5th Cir.1990) (per curiam); United States v. Rapp, 539 F.2d 1156, 1160 (8th Cir.1976); Bartlett v. United States, 317 F.2d 71, 71 (9th Cir.) (per curiam), cert. denied, 375 U.S. 847, 84 S.Ct. 102, 11 L.Ed.2d 75 (1963); United States v. One Mercedes Benz, VIN: WDBBA48D5JA087263, 719 F.Supp. 595, 597 (E.D.Mich.1989). But cf. Floyd v. United States, 860 F.2d 999, 1002-03, 1006-07 (10th Cir.1988) (rule 41(e) motions are governed by equitable principles, and do not depend on the existence of a criminal proceeding). Indeed, Fed.R.Crim.P. 54(b)(5) provides that the Federal Rules of Criminal Procedure “are not applicable to * * * civil forfeiture of property for violation of a statute of the United States.” See United States v. Elias, 921 F.2d 870, 875 (9th Cir.1990). Where criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint. Mora v. United States, 955 F.2d 156, 158 (2d Cir.1992). Cf. Grant v. United States, 282 F.2d 165, 168 (2d Cir.1960) (Friendly, J.) (“We have said that such a motion ‘was in effect a complaint initiating a civil action’ ”) (quoting Lapides v. United States, 215 F.2d 253, 254 (2d Cir.1954)). Since Onwubiko is a pro se plaintiff, we are obliged to construe his pleadings and papers liberally. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972) (“less stringent standards”); LaBounty v. Adler," }, { "docid": "23636275", "title": "", "text": "motion in the district court-requesting the return of the property seized from him. In particular, Rufu stated that the seized property consisted of “two Suitcases containing ... personal belongs [sic] (clothes, Jewelries, Black leather coat, Documents and others).” By letter dated June 22,1993, the Government advised the district court that Rufu’s property had been returned to him as follows: First, on June 5, 1991, a money order for $262.50 was sent to Rufu. Second, in October of 1991, two pieces of luggage — a “Black ‘GER-HARD’ Model Garment Bag” and a “Brown imitation leather mini duffel bag” — were sent to Rufu’s designated recipient, “Moses Ak-infeleye,” at 116-20 131st St., Queens, NY. The items of luggage were listed on a form entitled “Disposition of Non-Drug Evidence,” prepared by the DEA in October of 1991. Return receipts indicated that the luggage was received by the addressee. Copies of the form and receipts were included with the letter to the district court. Third, a watch, a yellow cross and an empty wallet were returned directly to Rufu in July of 1992. Finally, Rufu’s Nigerian passport and resident alien card were sent to the INS. The district court concluded that Rufu’s property already had been returned and dismissed the action the same day it received the Government’s submissions. This appeal followed. DISCUSSION The district court where a defendant is tried has ancillary jurisdiction to decide the defendant’s post-trial motion for return of seized property. Soviero v. United States, 967 F.2d 791, 792 (2d Cir.1992). If made after the termination of criminal proceedings against the defendant, as is the case here, such a motion should be treated as a civil complaint for equitable relief. See Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir.1992) (motion pursuant to Fed. R.Crim.P. 41(e) should be treated as civil complaint); Mora v. United States, 955 F.2d 156, 160 (2d Cir.1992). That the Government has destroyed or otherwise disposed of the property sought by the movant does not render the motion moot, since the court has authority to award damages in lieu of the equitable relief sought. See" }, { "docid": "22732783", "title": "", "text": "destroyed by the government. Id. We held in Martinson that the district court had equitable jurisdiction to entertain the motion for the return of property “even if styled as being pursuant to Fed.R. Crim.P. 41(e).” Id. at 1367. In holding that equitable jurisdiction was available under the facts presented in Martinson, however, we noted “this is not a case in which the property in question was forfeited pursuant to statute after adequate notice to the movant.” Id. at 1368 n. 3 (emphasis added). We concluded in Martinson that it was necessary to exercise equitable jurisdiction “to secure complete justice.” Id. at 1367 (quoting EEOC v. General Tel. Co., 599 F.2d 322, 324 (9th Cir.1979), aff'd, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980)). In the instant matter, the parties are in agreement that the government had initiated administrative forfeiture proceedings pursuant to statute after notice to Elias. The parties differ only regarding the legal sufficiency of the claims filed by Elias. In Martinson, the claimant had no legal remedy because the government improperly destroyed his property pursuant to administrative proceedings that should have been stayed. 809 F.2d at 1366-69. In this matter, Elias had a remedy at law pursuant to the administrative forfeiture scheme set forth in 19 U.S.C. § 1608. Hence, Martin-son offers no support for Elias’ argument that the district court had equitable jurisdiction to entertain his motion. This case is controlled by our decision in United States v. United States Currency, $83,310.78, 851 F.2d 1231 (9th Cir.1988). In United States Currency, the government seized $83,310.78 and notified its apparent owner of the seizure. Id. at 1232. After filing the required claim and bond, the owner filed a Rule 41(e) motion for return of the property. There were no criminal proceedings pending at this time and the government had not filed a civil forfeiture action. On the next day, the government filed a civil forfeiture action. Id. at 1233. We held that under these circumstances, the Rule 41(e) motion was properly dismissed. ■ The reason for the dismissal was that Rule 54(b) of the Federal Rules" }, { "docid": "21044610", "title": "", "text": "791, 793 (8th Cir.1993); Willis v. United States, 787 F.2d 1089, 1093 (7th Cir.1986). The Court of Appeals for the Ninth Circuit has held that motions to return seized property, although fashioned under Fed. R.Crim.P. 41(e), are to be treated as “civil equitable proceedings” when there are no criminal proceedings pending against the movant. Martinson, 809 F.2d at 1367. See also Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir.1992) (“[wjhere criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint”). Defendant Marolf is currently serving his sentence for conviction in the underlying criminal case. All appeals have been exhausted and his motion to vacate his sentence in light of the forfeiture of the vessel has been concluded. Thus it is appropriate for the Court to rule on defendant’s Rule 41(e) motion and treat it as a civil equitable proceeding. The fact that the vessel is no longer available to be returned does not defeat this Court’s ability to effect an equitable remedy. Martinson, 809 F.2d at 1367. “It is the historic purpose of equity to secure complete justice. The courts will be alert to adjust their remedies so as to grant the necessary relief.” Id. at 1367 (quoting EEOC v. General Tel. Co., 599 F.2d 322, 334 (9th Cir.1979)); Soviero v. United States, 967 F.2d 791, 792-93 (2d Cir.1992) (case not moot where property has been destroyed because equitable jurisdiction of the court gives it ability to fashion appropriate relief). B. Summary of Applicable Forfeiture Procedures There are over 100 forfeiture statutes in the United States Code. Judith Secher, Asset Forfeiture: Practice & Procedure (1995). The procedures that govern in a .particular instance are necessarily dependant on the statute under which the forfeiture is predicated, and can vary significantly. In some instances, the procedural mechanism is set forth directly in the Act that authorizes the forfeiture ; in others, the statute requires that forfeitures are to be carried out in the manner set forth in some other statute or set of regulations. In still others, no" }, { "docid": "12216098", "title": "", "text": "seized property. The government was directed on July 22 to show cause why the relief should not be granted, and in response asked for an extension of time to August 19 because the AUSA assigned to the case was away and would not return until August 5. On August 6 Soviero's computer software was destroyed, and his computer hardware was transferred to the Drug Enforcement Administration (DEA) for administrative forfeiture proceedings. In a letter to the district court dated August 15 the government declared that all of Soviero’s property that had not been forfeited, destroyed, or transferred to the DEA would be turned over to him. Construing Soviero’s motion as one made under Rule 41(e) of the Federal Rules of Criminal Procedure, the district court on September 30, 1991 denied it as moot, “since the United States consents to the return of property not subject to forfeiture proceedings.” DISCUSSION We have held that a district court where a defendant is tried has ancillary jurisdiction to decide a defendant’s post-trial motion for the return of seized property. See Mora v. United States, 955 F.2d 156, 158 (2d Cir.1992). Where criminal proceedings are no longer pending against the defendant such motion is treated as a civil equitable proceeding even if styled as being pursuant to Fed.R.Crim.P. 41(e). United States v. Martinson, 809 F.2d 1364, 1367 (9th Cir.1987). Simply because the government destroys or otherwise disposes of property sought by the movant, the motion for its return is not thereby rendered moot. See Mora, 955 F.2d at 159 (collecting cases). When a court possessing equitable powers has jurisdiction over a complaint that seeks equitable relief, it has authority to award whatever damages are incident to the complaint. Id. After it had been ordered to show cause why Soviero’s software should not be returned to him, the government, according to the complaint, high-handedly destroyed it. If the software held records of drug transactions — as the government apparently believes it did — the appropriate means to establish that fact as a reason for refusing to return the property would have been to present the" }, { "docid": "12216099", "title": "", "text": "property. See Mora v. United States, 955 F.2d 156, 158 (2d Cir.1992). Where criminal proceedings are no longer pending against the defendant such motion is treated as a civil equitable proceeding even if styled as being pursuant to Fed.R.Crim.P. 41(e). United States v. Martinson, 809 F.2d 1364, 1367 (9th Cir.1987). Simply because the government destroys or otherwise disposes of property sought by the movant, the motion for its return is not thereby rendered moot. See Mora, 955 F.2d at 159 (collecting cases). When a court possessing equitable powers has jurisdiction over a complaint that seeks equitable relief, it has authority to award whatever damages are incident to the complaint. Id. After it had been ordered to show cause why Soviero’s software should not be returned to him, the government, according to the complaint, high-handedly destroyed it. If the software held records of drug transactions — as the government apparently believes it did — the appropriate means to establish that fact as a reason for refusing to return the property would have been to present the software to the district court. According to Soviero, the software “represented many months of difficult programming which resulted in several programs of some possible commercial value.” On remand, the district court should receive evidence with respect to the value of the software and the circumstances of its destruction. Appellant should be permitted to seek damages if the district court determines the government’s conduct renders it liable for such. See Mora, 955 F.2d at 161; Martinson, 809 F.2d at 1370. With respect to the hardware, the government contends that it became subject to forfeiture in administrative proceedings where Soviero was entitled to ask for remission or mitigation of any order of seizure or to seek judicial review. Under these circumstances, the government continues, appellant had an adequate remedy at law and the district court was therefore effectively divested of jurisdiction to entertain appellant’s motion. We rejected a similar argument in Mora, noting when the government gives away, loses or destroys a prisoner’s property, such unilateral conduct on the government’s part does not ... deprive the court" }, { "docid": "23050561", "title": "", "text": "1331. See United States v. Mosquera, 845 F.2d 1122, 1126 (1st Cir.1988) (per curiam). See also Marshall Leasing, Inc. v. United States, 893 F.2d 1096, 1102-03 (9th Cir.1990) (district court had jurisdiction over due process attack on forfeiture under § 1331); Willis v. United States, 787 F.2d 1089, 1093 (7th Cir.1986) (general federal question subject matter jurisdiction exists over constitutional challenge to forfeiture), cited in Sarit, 987 F.2d at 17. The fact that Giraldo termed his motion as one under Rule 41(e) does not defeat the district court’s jurisdiction. ‘Where criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint.” Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir.1992). See also United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir.1987) (motions to return property filed under Rule 41(e) are treated as “civil equitable proceedings” when criminal proceedings have been completed); cf. Woodall, 12 F.3d at 794 n. 1 (once criminal proceedings have ended, a pleading by a pro se plaintiff which is styled as a Rule 41(e) motion should be liberally construed as seeking to invoke the proper remedy). In this situation, due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). [I]f the government is incarcerating or prosecuting the property owner when it elects to impose the additional burden of defending a forfeiture proceeding, fundamental fairness surely requires that either the defendant or his counsel receive actual notice of the agency’s intent to forfeit in time to decide whether to compel the agency to proceed by judicial condemnation. Woodall, 12 F.3d at 794-95. See Robinson v. Hanrahan, 409 U.S. 38, 40, 93 S.Ct. 30, 31, 34 L.Ed.2d 47 (1972) (per curiam) (the state violated defendant’s right to due process by mailing a notice of forfeiture to defendant’s home when it knew that he was in jail)." }, { "docid": "8529655", "title": "", "text": "criminal proceedings have ended); Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir.1992) (‘Where criminal proceedings have already been completed, a district court should treat a rule [sic] 41(e) motion as a civil complaint.”); United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir.1987) (treating Rule 41(e) motion as “civil equitable proceeding[ ]” when criminal proceedings have been completed). Accordingly, the Court should construe petitioners’ motion for return of property as a civil complaint seeking to invoke the equitable powers of the Court. C. Jurisdiction to Consider Petitioners’ Claims 1. Jurisdiction Generally Construing petitioners’ pleading as a civil complaint, the Court must first determine whether it has jurisdiction to consider petitioners’ claims. Plaintiffs’ boat was administratively forfeited pursuant to the Tariff Act of 1930,19 U.S.C. §§ 1600-1619; see also 21 C.F.R. §§ 1316.75-1316.79, which applies to property relating to drug transactions pursuant to 21 U.S.C. § 881. As succinctly summarized by the First Circuit in Giraldo, supra: These laws provide that property worth $500,000 or less is subject to administrative forfeiture without judicial involvement. 19 U.S.C. § 1607. The administrative process requires the government to publish notice of its intent to forfeit the property once a week for three weeks and to send written notice to any party known to have an interest in the property. Id. § 1607(a); 21 C.F.R. § 1316.75. A claimant then has 20 days after the first publication to file a claim and a cost bond of not less than $250. The filing of the claim and the bond stops the administrative process and requires the seizing agency to hand the matter over to the United States Attorney for the commencement of a judicial forfeiture proceeding. Id.; see also 21 C.F.R. § 1316.76(b). A claimant’s failure to follow these procedures results in a declaration of forfeiture by the seizing agency and the vesting of title in the United States. 19 U.S.C. § 1609. This declaration has the same effect as a final decree and order of forfeiture entered in a judicial proceeding. Giraldo, 45 F.3d at 510-11; accord, Linarez v. United States Dep’t of" } ]

[ { "docid": "11469321", "title": "", "text": "and Lockwood is presently retained by Hendrickson in connection with the payment of taxes on foreign patents— unrelated to railcar moving vehicles — and to represent Hendrickson in trademark opposition proceedings related to the registration of a trademark on the Hendrickson logo. Hendrickson and defendant White became related companies in the middle of 1976 as indicated by Hendrickson having purchased 20% of White’s outstanding stock and by the composition of White’s Board of Directors which include the President and Vice-President of Hendrickson. Defendant White is seeking to disqualify Lockwood from representing either Whiting or Hendrickson because, in its view, such dual representation presents an improper conflict of interest and because it fears its interests will be prejudiced by the continued dual representation. Without deciding whether White, which neither is nor ever has been Lockwood’s client, has standing to herein complain, I note that the court, once apprised of an alleged breach of professional responsibility has a duty to determine whether there is any substance to the accusations. See Empire Linotype School v. United States, 143 F.Supp. 627, 631 (S.D.N.Y.1956). There is a test called the “substantial related” test that should guide an attorney, and if necessary the court, in ascertaining whether or not a conflict arises out of an attorney’s accepting employment in a suit against a former client. See Ernie Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 565 (2nd Cir. 1968). But the propriety of accepting employment in an action against an existing client must be measured in light of “the duty of undivided loyalty which an attorney owes to each of his clients.” Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2nd Cir. 1976). This case is unique and does not fit neatly into either of these classical factual settings in that neither of Lockwood’s clients, even after having been fully informed of the dual representation, seeks to have it disqualified. One of them, Hendrickson, is not a party to the present lawsuit. Moreover, both attorney-client relationships concern mutually exclusive subject matters. Canon 5 of the Code of Professional Responsibility is particularly appropriate under these" } ]

[ { "docid": "1274194", "title": "", "text": "suit might lie, in litigation where the basis for such an indemnification claim or independent suit is specifically at issue, Bachner Tally is subject to precisely the conflicting pressures and loyalties which the Code seeks to prohibit by virtue of its Canons and Disciplinary Rules. Cf. Messing v. FDI, Inc., 439 F.Supp. 776 (D.N.J.1977); Cannon v. U. S. Acoustics Corp., 398 F.Supp. 209 (N.D.Ill.1975), aff’d in relevant part, 532 F.2d 1118 (7th Cir. 1976); Lewis v. Shaffer Stores Co., 218 F.Supp. 238 (S.D.N.Y.1963) (McLean, J.). Even if Bachner Tally’s judgment were in no way impaired by its current multiple representation, that representation is certainly sufficient to give the firm the “ ‘appearance of representing conflicting interests,’ ” Cinema 5, Ltd. v. Cinerama, Inc., supra, 528 F.2d at 1387, which is in and of itself sufficient to warrant disqualifying it from continuing to represent all of the counterclaim defendants simultaneously. Ibid.; see Fund of Funds, Ltd. v. Arthur Anderson & Co., 567 F.2d 225, 234-35 (2d Cir. 1977). Thus, unless Bachner Tally can justify its continued representation of both sets of litigants in this action under one of those “ ‘rare and conditional exceptions,’ ” Cinema 5, Ltd. v. Cinerama, Inc., supra, 528 F.2d at 1386, to the ban against such multiple representation, the firm must be disqualified from continuing to represent all of its present clients in this action simultaneously. The first exception pursuant to which Bachner Tally seeks to justify its multiple representation is what might be termed the “identity of interest” exception. See Brown & Williamson Tobacco Corp. v. Daniel International Corp., 563 F.2d 671 (5th Cir. 1977). In Brown & Williamson, for example, although two corporations were technically in adverse positions in ongoing litigation, one being a fourth party plaintiff and the other a fourth party defendant, the court held that the joint representation of those two corporate entities was proper because of the “substantial identity of interests” between the companies. Id. at 673. The stock of each company was all owned by the same three members of one family, except for a miniscule amount held by" }, { "docid": "23429122", "title": "", "text": "us to hold that any of these findings are clearly erroneous. On the contrary, they appear to be fully supported by the record. Judge Manos then entered the following conclusions of law: Continental claims that Winston & Strawn’s duty to protect the interest of Interstate and Ward conflict with their duty to represent Laub in the present suit. Continental argues that this suit would have joined Interstate, Ward and Continental as defendants if attorneys other than Winston & Strawn had been retained to represent Laub. Continental contends that Winston & Strawn’s continued representation of Laub in this suit violates Canon 5 of the Code of Professional Responsibility and therefore Winston & Strawn should be disqualified. Canon Five and pertinent Ethical Considerations promulgated thereunder read in part: A lawyer should exercise independent professional judgment on behalf of a client. Canon Five. ' If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of this representation. Ethical Consideration 5-15. It has been repeatedly held that an attorney may not represent a client in litigation against a former client if the subject matter of the litigation is “substantially related” to work he or she did for the former client. See e. g. Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 565 (2nd Cir. 1968); Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977); T. C. & Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 268 (S.D.N.Y. 1953). If the representation is against an existing client, not just a former one, the balance shifts even more significantly toward disqualification. See Cinema 5, Ltd. v. Cinerama, 528 F.2d 1384, 1386 (2nd Cir. 1976). Continental claims that Winston & Strawn in representing Laub, represents a party whose interests may be adverse to pre-existing clients, Interstate and Ward. The court agrees. However this fact, in and of itself, does" }, { "docid": "10480282", "title": "", "text": "obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each. (D) If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment. As noted in Levin, “adverse effect” is not defined. “We think, however, that it is likely that some ‘adverse effect’ on an attorney’s exercise of his independent judgment on behalf of a client may result from the attorney’s adversary posture toward that client in another matter.” Id. at 280. Our Court of Appeals continued, citing Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir.1976) with approval: “Putting it as mildly as we can, we think it would be questionable conduct for an attorney to participate in any lawsuit against his own client without the knowledge and consent of all concerned.” Under the Code [of Professional Responsibility], the lawyer who would sue his own client, asserting in justification that lack of “substantial relationship” between the litigation and the work he has undertaken to perform for that client, is leaning on a slender reed indeed. Cinema 5, supra at 1386. (emphasis supplied) [T]he “substantial relationship” test does not set a sufficiently high standard by which the necessity for disqualification should be determined. That test may be properly applied only where the representation of a former client has been terminated and the parameters of such relationship have been fixed. Where the relationship is a continuing one, adverse representation is prima facie improper ... and the attorney must be prepared to show, at the very least, that there will be no actual or apparent conflict in loyalties or diminution in the vigor of his representation. Id. at 1387 (emphasis in original). See also Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1266 (7th Cir.1983) (irrelevant whether attorney actually obtained information and used it against client, or whether, if a" }, { "docid": "22452593", "title": "", "text": "to enforce ethical standards, the economic realities of seeking legal advice must be considered: The importance of the societal interest in conflict-free representation might arguably support a blanket prohibition of the simultaneous representation of differing interests even if the client consented under DR 5-10(C). Forbidding consent, however, would ignore the important interest of the individual client in choosing his attorney and in controlling the progress of his litigation in light of his perceived self-interest. In many situations, independent representation provides few benefits to compensate for significant increases in legal expenses. Developments in the Law — Conflicts of Interest in the Legal Profession, 94 Harv. L.Rev. 1244, 1303-04 (1981). Not only is the financial burden in a case such as the one before this court an important consideration, but also the right to counsel of choice must be weighed: The knowing and intelligent exercise of the right to choose counsel, after full disclosure, will not be overturned by this court unless there is a convincing showing by the moving party of a real and substantial harm to the acquiescing party’s interests. Melamed v. ITT Continental Baking Co., 592 F.2d 290, 293 (6th Cir.1979). Aetna Casualty and Surety Co. v. United States, 570 F.2d 1197, 1200-01 (4th Cir.), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978), (practical considerations of the case must be weighed, mere existence of multiple defendants does not inevitably create a conflict of interest). Although this Court does not believe that the dual representation in this case constitutes an actual conflict or appearance of impropriety which outweighs the client’s choice of counsel and the economic realities, the court faces other issues in the resolution of the appeal. Specifically, the court must examine whether the law firm was, by statute, eligible for employment, and whether disclosure requirements were satisfied. Eligibility for Employment The threshold question in ruling on the law firm’s petition for fees and costs pursuant to § 327(a) of the Bankruptcy Code and Bankruptcy Rule 2014 is whether the law firm was eligible for employment under applicable statutes. This inquiry is similar to, but" }, { "docid": "23429127", "title": "", "text": "counsel, Winston & Strawn made a full disclosure to him about their relationship to Interstate and Ward. Melamed made it clear in his testimony that despite the facts disclosed about Winston & Strawn’s relationship with Laub’s competitors he wished to retain Winston & Strawn as counsel for Laub. Robert Balantzow testified that he recommended retaining Winston & Strawn to Melamed because that firm handled the Continental Baking Co. v. Old Homestead Baking case. See Continental Baking Co. v. Old Homestead Baking Co., 476 F.2d 97 (10th Cir. 1973). Balantzow also testified that he had been fully informed about the attorney-client relationship existing between Winston & Strawn and Interstate and Ward before he recommended that the trustee retain the services of that firm. He also testified that Mr. Walton had assured him that if, in his investigation of the case he found any anti-trust claim against either Ward or Interstate, his firm would withdraw from the case. Balantzow further testified as follows: It was when we sought to retain you [Mr. Walton], your firm, we need the approval of the bankruptcy judge, Judge Don Miller. At the time I presented the motion on application to engage you, I went in to see the judge to advise him of our meetings, the claims, Winston & Strawn’s former representation and present representation of Interstate and Ward Foods, and the fact that we had a meeting with Stonebraker, Beyer, the former counsel for Laub, Mr. Stonebraker’s attorney and you at which time all of this was disclosed not only to me but to Mr. Beyer and Mr. Stonebraker, as well as their attorneys and Laub’s attorney to see if there was any possible claim to be asserted against Ward or Interstate. Balantzow stated categorically that in his judgment it would be in the best interests of the trust to keep Winston & Strawn as its counsel. Stanley Walton’s testimony was the same as the testimony of Melamed and Balantzow concerning the completeness and timeliness of the disclosure by Winston & Strawn of its relationship with Interstate and Ward. He also testified that prior to" }, { "docid": "23429135", "title": "", "text": "most cases, implicate any claim of right that will be irreparably lost on appeal from final judgment. In the exceptional case, where irreparable harm would indeed result, the movant may petition this court for a writ of mandamus under 28 U.S.C. § 1651 (1970), the All Writs Act. This approach will afford the court the flexibility necessary to prevent serious injustice while advising litigants of the court’s extreme reluctance to depart from the final judgment rule. Community Broadcasting, supra, 178 U.S.App.D.C. at 260-262, 546 F.2d at 1026-28 (footnotes omitted). We agree with the reasoning of the D.C. Circuit’s per curiam opinion just quoted and adopt its result for future such cases in this Circuit. The judgment of the District Court is affirmed. If the other party represented by an attorney with a possible conflict of interest did not acquiesce after full disclosure in allowing the dual representation and its interests could possibly be adversely effected then the normal “substantial relationship” rule would apply. In this case the court finds that the continued representation of Laub by Winston & Strawn in this suit against Continental can in no conceivable way adversely effect the interests of Ward or Interstate. . We observe that the Baglini case cited by Judge Manos has now been affirmed by order of the Third Circuit. Baglini v. Pullman, Inc., 412 F.Supp. 1060 (E.D.Pa.1976), aff'd without published opinion, 547 F.2d 1158 (3d Cir. 1976). Nonetheless, we also observe that while the District Court opinion therein recites law which does lend support to the result in our instant case, we do not cite Baglini as authority approved by this Circuit as to its facts as we can glean them from the District Court opinion. . See ABA Code of Professional Responsibility DR1-103 which states: A lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation. . Note, The Appealability of Orders Denying Motions for Disqualifications of Counsel in the Federal Courts, 45 U.Chi.L.Rev. 450 (1978). . This holding does not apply" }, { "docid": "23429121", "title": "", "text": "On account of the asserted monopolistic practices, plaintiff alleges that Laub was forced out of business in January, 1974. Melamed v. ITT Continental Baking Co., supra, 534 F.2d at 83. It is undisputed that Continental was one of Laub’s major competitors in Northern Ohio. It is also undisputed that Interstate Brands Corp. [Interstate] and Ward Foods Inc. [Ward] sold bakery goods in Northern Ohio at the time Laub went out of business. Like Continental, these two companies were major competitors of Laub’s. However, only Continental was named as a defendant in this action. Laub retained Stanley A. Walton of Winston & Strawn to represent it. From roughly 1970 to 1974, during which the claims in this lawsuit arose, Winston & Strawn represented both Interstate and Ward. The work Winston & Strawn did Winston & Strawn have continued to this day to do legal work for Interstate and Ward, for Interstate and Ward included antitrust litigation, and Mr. Walton has personally counseled Interstate on certain anti-trust matters. Our review of this record discloses no reason for us to hold that any of these findings are clearly erroneous. On the contrary, they appear to be fully supported by the record. Judge Manos then entered the following conclusions of law: Continental claims that Winston & Strawn’s duty to protect the interest of Interstate and Ward conflict with their duty to represent Laub in the present suit. Continental argues that this suit would have joined Interstate, Ward and Continental as defendants if attorneys other than Winston & Strawn had been retained to represent Laub. Continental contends that Winston & Strawn’s continued representation of Laub in this suit violates Canon 5 of the Code of Professional Responsibility and therefore Winston & Strawn should be disqualified. Canon Five and pertinent Ethical Considerations promulgated thereunder read in part: A lawyer should exercise independent professional judgment on behalf of a client. Canon Five. ' If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided" }, { "docid": "23429125", "title": "", "text": "court has found that Melamed and Balantzow were fully informed about any possible conflict of interest. Yet undisputably Melamed and Balantzow believe that the continued representation of Laub by Winston & Strawn is in the best interest of the trust. That there has been full disclosure weighs heavily against disqualification. See Whiting Corp. v. White Machinery Corp., 567 F.2d 713, 715 (7th Cir. 1977); Cinema 5, Ltd. v. Cinerama, Inc., supra, 528 F.2d at 1386. Further Laub exercised an important public right in retaining Winston & Strawn; the right to the counsel of their choice, see e. g. Woods v. Covington City Bank, 537 F.2d 804, 810 (5th Cir. 1976); Moritz v. Medical Protective Co. etc., 428 F.Supp. 865, 874 (W.D.Wisconsin 1977); Baglini v. Pullman Inc., supra, 412 F.Supp. at 1066. The knowing and intelligent exercise of the right to choose counsel, after full disclosure, will not be overturned by this court unless there is a convincing showing by the moving party of a real and substantial harm to the acquiescing party’s interests. Baglini v. Pullman Inc., supra, 412 F.Supp. at 1064-1066. The court finds that Continental has not established a real and substantial disadvantage that would be caused to Laub by the continued representation of Laub by Winston & Strawn. Accordingly the motion to disqualify is overruled. (Footnote 2 omitted.) We find no reason to fault the District Judge’s legal reasoning, and we affirm his conclusions. When this case was first before us, this court had no way of knowing what stake, if any, appellant Continental had in contesting appellee’s choice of counsel. After the hearing and decision of the District Court, we are now fully informed. Judge Manos’ findings include the following: Maynard Melamed, an attorney, is the trustee for the bankrupt company. Robert Balantzow, also an attorney, was retained by Melamed to handle proceedings in the bankruptcy court. At the hearing on the motion to disqualify Melamed testified that he retained Winston & Strawn to represent the trust in the anti-trust matter, on the recommendation of Balantzow. Melamed also testified that prior to retaining the firm as" }, { "docid": "12370203", "title": "", "text": "John Walshe in Support of PL’s Mot. to Disqualify, ¶ 1. According to plaintiff, since “108 [TV defendants] did not choose defense counsel and had no input in that choice,” there exists a “clear, unavoidable and insoluble conflict between the interests of the Paramount defendants ... and the rights of the TV defendants.” Id.; PL’s Memo. Supp. Mot. to Disqualify Defendants’ Counsel at 1. Courts have long recognized the need to protect the integrity of the attorney-client relationship in circumstances where a perceived conflict of interest arises. See, Bonin v. California, 494 U.S. 1039, 1040, 110 S.Ct. 1506, 108 L.Ed.2d 641 (1990) (Marshall, J., dissenting) (“[i]t is well established that the right to effective assistance of counsel carries with it a correlative right to representation that is free from conflicts of interest”); Board of Ed. of City of New York v. Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979) (trial judges have the power to disqualify counsel where necessary to preserve the integrity of adversary actions before them). A conflict of interest between clients can potentially compromise a lawyer’s duty to serve each client with undivided loyalty, as well as to deter the attorney from exercising independent, professional judgment on behalf of each client. Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir.1976). Contrasted against the court’s duty to protect the integrity of the trial proceeding, however, is its desire to respect the client’s interest in selecting and retaining counsel. Generally, courts have expressed reluctance in granting disqualification motions because of their concerns regarding: (1) the “immediate adverse effect disqualification has on the client separated from his lawyer;” (2) “the desire to preserve, to the greatest extent possible, ... the individual’s right to be represented by counsel of his or her choice;” and (3) “the awareness that disqualification motions are being made, with increasing frequency, with purely strategic purposes in mind.” Vegetable Kingdom, Inc. v. Katzen, 653 F.Supp. 917, 921 (N.D.N.Y.1987) (citing Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979); Hull v. Celanese Corp., 513 F.2d 568, 569 (2d Cir.1975)). Giving full consideration to these competing interests, motions to" }, { "docid": "12370204", "title": "", "text": "compromise a lawyer’s duty to serve each client with undivided loyalty, as well as to deter the attorney from exercising independent, professional judgment on behalf of each client. Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir.1976). Contrasted against the court’s duty to protect the integrity of the trial proceeding, however, is its desire to respect the client’s interest in selecting and retaining counsel. Generally, courts have expressed reluctance in granting disqualification motions because of their concerns regarding: (1) the “immediate adverse effect disqualification has on the client separated from his lawyer;” (2) “the desire to preserve, to the greatest extent possible, ... the individual’s right to be represented by counsel of his or her choice;” and (3) “the awareness that disqualification motions are being made, with increasing frequency, with purely strategic purposes in mind.” Vegetable Kingdom, Inc. v. Katzen, 653 F.Supp. 917, 921 (N.D.N.Y.1987) (citing Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979); Hull v. Celanese Corp., 513 F.2d 568, 569 (2d Cir.1975)). Giving full consideration to these competing interests, motions to disqualify counsel should be subjected to heightened scrutiny. Accordingly, the moving party bears a “heavy burden of proving [the] facts required for disqualification.” Evans v. Artek Systems Corp., 715 F.2d 788, 794 (2d Cir.1983); Government of India v. Cook Industries, Inc., 569 F.2d 737, 739 (2d Cir.1978). The American Bar Association Model Code of Professional Responsibility (“Model Code”) contains many disciplinary rules (“DRs”) that clarify the attorney-client relationship. As plaintiff stated in his motion, the relevant rule governing conflicts of interest is DR 5-105, Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer. Under DR 5-105, an attorney must generally disqualify himself and cease from representing multiple clients in cases where (1) the exercise of the attorney’s independent professional judgment will be or is likely to be adversely affected by representing another client; or (2) the attorney is representing parties who have differing interests. Merely representing multiple clients who have similar interests in seeking joint representation does not automatically impair effective assistance of" }, { "docid": "20295414", "title": "", "text": "performed during the years 1992 through 1995 (Item 43). Mr. Szczepanski reiterates that this work related entirely to immigration matters involving Al-can employees, and that defendant’s counsel has never obtained any information from those employees regarding the subject matter of this litigation. Canon 5 of the Code of Professional Responsibility proscribes an attorney’s representation of a person with interests adverse to those of an existing client, and Canon 9 provides that a lawyer “should avoid even the appearance of professional impropriety.” N.Y. Judiciary Law App.; see Hartford Accident and Indemnity Co. v. RJR Nabisco, Inc., 721 F.Supp. 534, 538 (S.D.N.Y. 1989). Motions to disqualify a party’s counsel of choice are generally disfavored in the Second Circuit, as they are elsewhere, primarily because of the delay and additional expense created by substitution of counsel. Bennett Silvershein Associates v. Furman, 776 F.Supp. 800, 802 (S.D.N.Y.1991 ) (citing cases). In recognition of these concerns, the Circuit has established alternative guidelines for a district court to follow on a motion to disqualify an attorney for adverse representation, depending on the particular facts of the case. Hartford Accident and Indemnity Co., supra, 721 F.Supp. at 538. When a law firm undertakes to represent two adverse parties, both of which are “clients in the traditional sense,” and the relationship between the firm and the clients is continuing, the adverse representation is prima facie improper. Hartford Accident and Indemnity Co., supra at 538-39 (citing Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 749 (2d Cir.1981); Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1387 (2d Cir. 1976)). In this situation, “the attorney must be prepared to show, at the very least, that there will be no actual or apparent conflict in loyalties or diminution in the vigor of his [or her] representation.” Cinema 5, supra. Where the adverse party is a “vicarious” client, or the representation is not continuing or is otherwise attenuated, a less stringent standard is applied. In this situation, “disqualification is warranted only where there is a substantial relationship between the subject matters of the representation.” Hartford Accident and Indemnity Co., supra, 721" }, { "docid": "23429128", "title": "", "text": "the approval of the bankruptcy judge, Judge Don Miller. At the time I presented the motion on application to engage you, I went in to see the judge to advise him of our meetings, the claims, Winston & Strawn’s former representation and present representation of Interstate and Ward Foods, and the fact that we had a meeting with Stonebraker, Beyer, the former counsel for Laub, Mr. Stonebraker’s attorney and you at which time all of this was disclosed not only to me but to Mr. Beyer and Mr. Stonebraker, as well as their attorneys and Laub’s attorney to see if there was any possible claim to be asserted against Ward or Interstate. Balantzow stated categorically that in his judgment it would be in the best interests of the trust to keep Winston & Strawn as its counsel. Stanley Walton’s testimony was the same as the testimony of Melamed and Balantzow concerning the completeness and timeliness of the disclosure by Winston & Strawn of its relationship with Interstate and Ward. He also testified that prior to Winston & Strawn being retained by Laub, a list of Laub’s assets filed in bankruptcy court included an anti-trust suit against Continental only. He further testified that he conducted an investigation into the possibility of filing an anti-trust action against Laub’s competitors and found that the only party Laub had a claim against was Continental. The court finds that full disclosure was made to Melamed and Balantzow about Winston & Strawn’s relationship with Interstate and Ward before they were retained to represent the trust in this action. The court also finds that notwithstanding the relationship of Winston & Strawn to Interstate and Ward, Melamed and Balantzow still wanted Winston & Strawn to continue as their counsel. Finally the court finds that the only conceivable party whose interests could be adversely affected by Winston & Strawn’s representation of Laub are those of Laub. (Emphasis added.) It is our conclusion that while Continental’s counsel in this litigation had a right and arguably a duty to call the attention of the District Judge to the possible conflict of" }, { "docid": "22398931", "title": "", "text": "representation is necessary to facilitate assertion of a specific point of view in court. Thus, while the male defendants have a right to obtain legal advice and representation, we do not believe that on these facts the First Amendment protects the right of a particular attorney to represent them in court. We thus conclude that the First Amendment does not constrain consideration of the propriety of Mr. Sandner’s representation and the disqualification order, to which we now turn. Ill We begin the discussion by noting that, curiously, the power of the federal courts to disqualify attorneys in litigation pending before them has long been assumed without discussion, see, e. g., General Contract Purchase Corp. v. Armour, 125 F.2d 147, 149 (5th Cir. 1942); United States v. Bishop, 90 F.2d 65, 66 (6th Cir. 1937); Brown v. Miller, 52 App.D.C. 330, 286 F. 994, 997 (1923); T. C. & Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 271 n. 15 (S.D.N.Y.1953), and attention has focused on identifying the circumstances in which exercise of the power is appropriate. Our reading of the cases in this circuit suggests that we have utilized the power of trial judges to disqualify counsel where necessary to preserve the integrity of the adversary process in actions before them. In other words, with rare exceptions disqualification has been ordered only in essentially two kinds of cases: (1) where an attorney’s conflict of interests in violation of Canons 5 and 9 of the Code of Professional Responsibility undermines the court’s confidence in the vigor of the attorney’s representation of his client, see, e. g., Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225 (2d Cir. 1977); Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976), or more commonly (2) where the attorney is at least potentially in a position to use privileged information concerning the other side through prior representation, for example, in violation of Canons 4 and 9, thus giving his present client an unfair advantage, see, e. g., Fund of Funds, Ltd. v. Arthur Andersen & Co., supra; Emle Industries," }, { "docid": "1274193", "title": "", "text": "fact of advising Felt and Harrow that they have any right to indemnification or any independent claim for damages against the remaining counterclaim defendants, Bachner Tally would be acting adversely to the interests of their present clients Rice, Barkan and Felt Realty. See ABA Informal- Ethics Opinions, 1119 (1975). Conversely, in failing to so advise Felt and Harrow, Bachner Tally would, quite obviously, be acting adversely to the interests of Felt and Harrow, who are also current Bachner Tally clients. See ibid. Thus, the conflict of interest to which Bachner Tally is subject is immediately apparent. Furthermore, in deciding whether to assert an indemnity claim, or institute an independent suit, or even take no action whatsoever as against Rice, Barkan and Felt Realty, Felt and Harrow are entitled to the independent professional judgment of counsel “free of compromising influences and loyalties.” Cinema 5, Ltd. v. Cinerama, Inc., supra, 528 F.2d at 1386; see Code, E.C. 5-1. But here, where Bachner Tally is currently representing those very parties against whom such an indemnification claim or independent suit might lie, in litigation where the basis for such an indemnification claim or independent suit is specifically at issue, Bachner Tally is subject to precisely the conflicting pressures and loyalties which the Code seeks to prohibit by virtue of its Canons and Disciplinary Rules. Cf. Messing v. FDI, Inc., 439 F.Supp. 776 (D.N.J.1977); Cannon v. U. S. Acoustics Corp., 398 F.Supp. 209 (N.D.Ill.1975), aff’d in relevant part, 532 F.2d 1118 (7th Cir. 1976); Lewis v. Shaffer Stores Co., 218 F.Supp. 238 (S.D.N.Y.1963) (McLean, J.). Even if Bachner Tally’s judgment were in no way impaired by its current multiple representation, that representation is certainly sufficient to give the firm the “ ‘appearance of representing conflicting interests,’ ” Cinema 5, Ltd. v. Cinerama, Inc., supra, 528 F.2d at 1387, which is in and of itself sufficient to warrant disqualifying it from continuing to represent all of the counterclaim defendants simultaneously. Ibid.; see Fund of Funds, Ltd. v. Arthur Anderson & Co., 567 F.2d 225, 234-35 (2d Cir. 1977). Thus, unless Bachner Tally can justify its continued" }, { "docid": "23429126", "title": "", "text": "Pullman Inc., supra, 412 F.Supp. at 1064-1066. The court finds that Continental has not established a real and substantial disadvantage that would be caused to Laub by the continued representation of Laub by Winston & Strawn. Accordingly the motion to disqualify is overruled. (Footnote 2 omitted.) We find no reason to fault the District Judge’s legal reasoning, and we affirm his conclusions. When this case was first before us, this court had no way of knowing what stake, if any, appellant Continental had in contesting appellee’s choice of counsel. After the hearing and decision of the District Court, we are now fully informed. Judge Manos’ findings include the following: Maynard Melamed, an attorney, is the trustee for the bankrupt company. Robert Balantzow, also an attorney, was retained by Melamed to handle proceedings in the bankruptcy court. At the hearing on the motion to disqualify Melamed testified that he retained Winston & Strawn to represent the trust in the anti-trust matter, on the recommendation of Balantzow. Melamed also testified that prior to retaining the firm as counsel, Winston & Strawn made a full disclosure to him about their relationship to Interstate and Ward. Melamed made it clear in his testimony that despite the facts disclosed about Winston & Strawn’s relationship with Laub’s competitors he wished to retain Winston & Strawn as counsel for Laub. Robert Balantzow testified that he recommended retaining Winston & Strawn to Melamed because that firm handled the Continental Baking Co. v. Old Homestead Baking case. See Continental Baking Co. v. Old Homestead Baking Co., 476 F.2d 97 (10th Cir. 1973). Balantzow also testified that he had been fully informed about the attorney-client relationship existing between Winston & Strawn and Interstate and Ward before he recommended that the trustee retain the services of that firm. He also testified that Mr. Walton had assured him that if, in his investigation of the case he found any anti-trust claim against either Ward or Interstate, his firm would withdraw from the case. Balantzow further testified as follows: It was when we sought to retain you [Mr. Walton], your firm, we need" }, { "docid": "23429123", "title": "", "text": "if he accepts or continues the employment. He should resolve all doubts against the propriety of this representation. Ethical Consideration 5-15. It has been repeatedly held that an attorney may not represent a client in litigation against a former client if the subject matter of the litigation is “substantially related” to work he or she did for the former client. See e. g. Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 565 (2nd Cir. 1968); Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977); T. C. & Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 268 (S.D.N.Y. 1953). If the representation is against an existing client, not just a former one, the balance shifts even more significantly toward disqualification. See Cinema 5, Ltd. v. Cinerama, 528 F.2d 1384, 1386 (2nd Cir. 1976). Continental claims that Winston & Strawn in representing Laub, represents a party whose interests may be adverse to pre-existing clients, Interstate and Ward. The court agrees. However this fact, in and of itself, does not necessitate disqualification. See Baglini v. Pullman Inc., 412 F.Supp. 1060, 1065, 1066 (E.D.Penn.1976); Cannon v. U.S. Accoustics Corp., 398 F.Supp. 209, 219-220 (N.D.Ill.S.D.1975). A lawyer’s duty to his client is that of a fiduciary or trustee. See e. g. Hafter v. Farkas, 498 F.2d 587, 589 (2nd Cir. 1974). He or she must give undivided loyalty to each client. See e. g. Von Moltke v. Gillies, 332 U.S. 708, 725, 68 S.Ct. 316, 92 L.Ed. 309 (1948). A client can expect that an attorney will “accept no retainer to do anything that might be adverse to his client’s interests.” See Cinema 5, Ltd. v. Cinerama, Inc., et al., supra, 528 F.2d at 1386 [emphasis added]. In most situations the simple appearance of a conflict would be sufficient to cause this court to disqualify an attorney. See Canon 9 Code of Professional Responsibility. In this case however there is a crucial additional fact; the only party, who can be conceivably harmed by the potential conflict is Laub, which desires to keep its present counsel. The" }, { "docid": "23429120", "title": "", "text": "full evidentiary hearing and we remanded for such a hearing. After full evidentiary hearing, District Judge Manos entered the following findings of fact: On October 24, 1974 the trustee filed a 30 million dollar anti-trust action against Continental, which the Sixth Circuit described as follows: The complaint, in four counts, alleges violations of the Sherman Act, 15 U.S.C. §§ 1, 2 (two counts), the Robinson-Patman Act, 15 U.S.C. §§ 13, 14, 15, 26 (one count), and the Ohio Valentine Act, Ohio Rev.Code § 1331.01 et seq. (one count as pendent claim to the federal causes of action). Generally, the plaintiff claims that, in an effort to create and maintain a monopoly in bakery goods in Northern Ohio and Southwestern Michigan, defendants (hereafter referred to collectively as “Continental”) have engaged in “various predatory prices, discriminatory discounts, and price-wars.” Further, plaintiff alleges that Continental “subsidized” its unprofitable marketing activity in the Northern Ohio and South eastern Michigan region by utilizing financial resources drawn from its more profitable, monopolistic marketing operations in other regions of the United States. On account of the asserted monopolistic practices, plaintiff alleges that Laub was forced out of business in January, 1974. Melamed v. ITT Continental Baking Co., supra, 534 F.2d at 83. It is undisputed that Continental was one of Laub’s major competitors in Northern Ohio. It is also undisputed that Interstate Brands Corp. [Interstate] and Ward Foods Inc. [Ward] sold bakery goods in Northern Ohio at the time Laub went out of business. Like Continental, these two companies were major competitors of Laub’s. However, only Continental was named as a defendant in this action. Laub retained Stanley A. Walton of Winston & Strawn to represent it. From roughly 1970 to 1974, during which the claims in this lawsuit arose, Winston & Strawn represented both Interstate and Ward. The work Winston & Strawn did Winston & Strawn have continued to this day to do legal work for Interstate and Ward, for Interstate and Ward included antitrust litigation, and Mr. Walton has personally counseled Interstate on certain anti-trust matters. Our review of this record discloses no reason for" }, { "docid": "23429124", "title": "", "text": "not necessitate disqualification. See Baglini v. Pullman Inc., 412 F.Supp. 1060, 1065, 1066 (E.D.Penn.1976); Cannon v. U.S. Accoustics Corp., 398 F.Supp. 209, 219-220 (N.D.Ill.S.D.1975). A lawyer’s duty to his client is that of a fiduciary or trustee. See e. g. Hafter v. Farkas, 498 F.2d 587, 589 (2nd Cir. 1974). He or she must give undivided loyalty to each client. See e. g. Von Moltke v. Gillies, 332 U.S. 708, 725, 68 S.Ct. 316, 92 L.Ed. 309 (1948). A client can expect that an attorney will “accept no retainer to do anything that might be adverse to his client’s interests.” See Cinema 5, Ltd. v. Cinerama, Inc., et al., supra, 528 F.2d at 1386 [emphasis added]. In most situations the simple appearance of a conflict would be sufficient to cause this court to disqualify an attorney. See Canon 9 Code of Professional Responsibility. In this case however there is a crucial additional fact; the only party, who can be conceivably harmed by the potential conflict is Laub, which desires to keep its present counsel. The court has found that Melamed and Balantzow were fully informed about any possible conflict of interest. Yet undisputably Melamed and Balantzow believe that the continued representation of Laub by Winston & Strawn is in the best interest of the trust. That there has been full disclosure weighs heavily against disqualification. See Whiting Corp. v. White Machinery Corp., 567 F.2d 713, 715 (7th Cir. 1977); Cinema 5, Ltd. v. Cinerama, Inc., supra, 528 F.2d at 1386. Further Laub exercised an important public right in retaining Winston & Strawn; the right to the counsel of their choice, see e. g. Woods v. Covington City Bank, 537 F.2d 804, 810 (5th Cir. 1976); Moritz v. Medical Protective Co. etc., 428 F.Supp. 865, 874 (W.D.Wisconsin 1977); Baglini v. Pullman Inc., supra, 412 F.Supp. at 1066. The knowing and intelligent exercise of the right to choose counsel, after full disclosure, will not be overturned by this court unless there is a convincing showing by the moving party of a real and substantial harm to the acquiescing party’s interests. Baglini v." }, { "docid": "22398932", "title": "", "text": "is appropriate. Our reading of the cases in this circuit suggests that we have utilized the power of trial judges to disqualify counsel where necessary to preserve the integrity of the adversary process in actions before them. In other words, with rare exceptions disqualification has been ordered only in essentially two kinds of cases: (1) where an attorney’s conflict of interests in violation of Canons 5 and 9 of the Code of Professional Responsibility undermines the court’s confidence in the vigor of the attorney’s representation of his client, see, e. g., Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225 (2d Cir. 1977); Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976), or more commonly (2) where the attorney is at least potentially in a position to use privileged information concerning the other side through prior representation, for example, in violation of Canons 4 and 9, thus giving his present client an unfair advantage, see, e. g., Fund of Funds, Ltd. v. Arthur Andersen & Co., supra; Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973). In such cases, we note Chief Judge Kaufman’s oft-quoted admonition that, When dealing with ethical principles, we cannot paint with broad strokes. The lines are fine and must be so marked. Guideposts can be established when virgin ground is being explored, and the conclusion in a particular case can be reached only after a painstaking analysis of the facts and precise application of precedent. Fund of Funds, Ltd., supra, 567 F.2d at 227, quoting United States v. Standard Oil Co., 136 F.Supp. 345, 367 (S.D.N.Y.1955). But in other kinds of cases, we have shown considerable reluctance to disqualify attorneys despite misgivings about the attorney’s conduct. See, e. g., W. T. Grant Co. v. Haines, 531 F.2d 671 (2d Cir. 1976); Ceramco, Inc. v. Lee Pharmaceuticals, 510 F.2d 268 (2d Cir. 1975). This reluctance probably derives from the fact that disqualification has an immediate adverse effect on the client by separating him from counsel of his choice, and that disqualification motions are often interposed for tactical" }, { "docid": "23429129", "title": "", "text": "Winston & Strawn being retained by Laub, a list of Laub’s assets filed in bankruptcy court included an anti-trust suit against Continental only. He further testified that he conducted an investigation into the possibility of filing an anti-trust action against Laub’s competitors and found that the only party Laub had a claim against was Continental. The court finds that full disclosure was made to Melamed and Balantzow about Winston & Strawn’s relationship with Interstate and Ward before they were retained to represent the trust in this action. The court also finds that notwithstanding the relationship of Winston & Strawn to Interstate and Ward, Melamed and Balantzow still wanted Winston & Strawn to continue as their counsel. Finally the court finds that the only conceivable party whose interests could be adversely affected by Winston & Strawn’s representation of Laub are those of Laub. (Emphasis added.) It is our conclusion that while Continental’s counsel in this litigation had a right and arguably a duty to call the attention of the District Judge to the possible conflict of interest in this case, this fact should not be construed as automatically granting a right to an appeal of a denial of disqualification where, as here, the facts after full evidentiary hearing show the would-be appellant cannot show a possibility of injury. Our reliance for appealability in Melamed I was on Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The holding of that case was: We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it. But we do not mean that every order fixing security is subject to appeal. Here it is the right to security that presents a serious and unsettled question. If the right were admitted or clear and the order involved only an exercise of discretion as to the amount of security, a matter the statute makes subject to reconsideration from time to time, appealability would present a different question. Id." } ]

[ { "docid": "22609774", "title": "", "text": "of citizenship is a penalty for the act of leaving or staying outside the country to avoid the draft. This being so, the Fifth and Sixth Amendments mandate that this punishment cannot be imposed without a prior criminal trial and all its incidents, including indictment, notice, confrontation, jury trial, assistance of counsel, and compulsory process for obtaining witnesses. If the sanction these sections impose is punishment, and it plainly is, the procedural safeguards required as incidents of a criminal prosecution are lacking. We need- go no further. The punitive nature of the sanction here is evident under the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character, even though in other cases this problem has been extremely difficult and elusive of solution. Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose, assigned are all relevant to the inquiry, and may often point in differing directions. Absent conclusive evidence of congressional intent as to the penal nature of a statute, these factors-must be considered in relation to the statute on its face. Here, although we are convinced that application of these criteria to the face of the statutes supports the conclusion that they are punitive, a detailed examination along such lines is unnecessary, because the objective manifestations of congressional purpose indicate conclusively that the provisions in question can only be interpreted as punitive. A study of the history of the predecessor of §401 (j), which “is worth a volume of logic,” New York Trust Co. v. Eisner, 256 U. S. 345, 349, coupled with a reading of Congress’ reasons for enacting § 401 (j), compels a conclusion that the statute’s primary function is" } ]

[ { "docid": "7282294", "title": "", "text": "marks omitted)). But, in principle, a statute declared by Congress to be regulatory rather than punitive can still be re-christened by a court under some circumstances. Thus, Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), asks whether a scheme -imposes an affirmative disability or restraint; -has been regarded in our history and traditions as a punishment; -comes into play only on a finding of scienter; -promotes the traditional aims of punishment; -applies to behavior that is already a crime; -has a rational connection to a nonpunitive purpose; and -is excessive with respect to this purpose. SORNA is surely burdensome for those subject to it. A sex offender must register in each jurisdiction where he resides, works, or goes to school, 42 U.S.C. § 16913(a), and he must periodically appear in person to verify and update certain information, and also to be photographed. Id. § 16916. Given his offenses, Parks will have to do this every three months for the rest of his life, id. §§ 16915(a), 16916(b), although the period may be reduced if he fulfills certain requirements. Id. § 16915(b). SORNA also establishes an online federal sex offender database (which is publically available) and instructs individual jurisdictions to establish their own similar databases, which include the offender’s name, physical description, photograph, criminal offense, criminal history, and any other information required by the Attorney General. 42 U.S.C. §§ 16914, 16918, 16919, 16920. The prospective disadvantages to Parks from such publicity are obvious. However, in Smith, the Supreme Court found that Alaska’s nearly identical registration requirement served to “make a valid regulatory program effective and [did] not impose punitive restraints in violation of the Ex Post Facto Clause.” 538 U.S. at 102, 123 S.Ct. 1140. The main distinction is that SORNA requires that Parks appear in person to register and update registration, 42 U.S.C. § 16916, while — as Smith itself noted — the Alaska statute did not and the Ninth Circuit, which had found the Alaska scheme unconstitutional, “was under a misapprehension, albeit one created by the State itself during the argument below, that" }, { "docid": "5180502", "title": "", "text": "intent and transform what has been denominated a civil remedy into a criminal penalty.” Id. (quoting Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)). Whether a statutory scheme is civil or criminal “is first of all a question of statutory construction.” Id. (quoting Hendricks, 521 U.S. at 361, 117 S.Ct. 2072.) Therefore, the Smith Court considered the text and structure of the Alaska Act. See id. at 92-93, 123 S.Ct. 1140. The Alaska legislature’s expressed intent in the statutory text was to “protect[] the public from sex offenders” and “[t]he legislature further determined that ‘release of certain information about sex offenders to the general public will assist in protecting the public safety.’ ” Id. at 93, 123 S.Ct. 1140 (citation omitted). The respondents in Smith, who challenged the constitutionality of the Act and asserted that its purpose was punitive, pointed out that the goal of “public safety” is “one of the purposes of criminal administration.” Id. at 93, 123 S.Ct. 1140. The Court disagreed, and explained that “where a legislative restriction ‘is an incident of the States’ power to protect the health and safety of its citizens,’ it will be considered ‘as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment.’ ” Id. at 93-94, 123 S.Ct. 1140 (quoting Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)). Furthermore, “even if the objective of the Act is consistent with the purposes of the Alaska criminal justice system, the State’s pursuit of it in a regulatory scheme does not make the object punitive.” Id. at 94, 123 S.Ct. 1140. Cotton contends that, unlike the statute in Smith, SORNA’s statutory scheme “indicates] ... Congress’ intent to punish sex offenders, regardless of their risk to public safety” because Congress “made no finding that sex offenders have a high risk of re-offense.” See Def.’s Mot. at 24-25. Cotton also points out that SORNA vests the authority to promulgate regulations with the Attorney General, whose main responsibility is enforcing criminal laws. Id. at 25. But" }, { "docid": "2646336", "title": "", "text": "v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (“Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction.”). The first step in this inquiry is to determine “whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Id. (internal quotation marks omitted). Even if the legislature indicates its desire to establish a civil penalty, a second step in the analysis is necessary. A court must determine “whether the statutory scheme was so punitive either in purpose or effect as to transfor[m] what was clearly intended as a civil remedy into a criminal penalty.” Id. (internal quotation marks and citation omitted) (alternation in original). The Supreme Court has identified seven factors that “provide useful guideposts” for answering this question: (1) [wjhether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment — retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alter native purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. Id. at 99-100, 118 S.Ct. 488 (alteration and italics in original) (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)). Because these factors “may often point in differing directions,” no single factor is dispositive. Mendoza-Martinez, 372 U.S. at 169, 83 S.Ct. 554 (1963). The Supreme Court has also determined that “these factors must be considered in relation to the statute on its face,” not in connection with individuals affected by the allegedly civil penalty. Id. Finally, “only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Hudson, 522 U.S. at 100, 118 S.Ct. 488 (internal quotation marks omitted). Neither party" }, { "docid": "22181235", "title": "", "text": "relied on the United States Supreme Court’s decision in Smith v. Doe, 538 U.S. 84, 89-90, 105-06, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), in which the Supreme Court held the Alaska Sex Offender Registration Act was civil and nonpunitive, and thus its retroactive application did not violate the ex post facto clause. We recognize, as did the district court in Beasley, “the issue is very different [than in Smith]. It is whether imposing criminal penalties for traveling to and residing in a new state and not registering as a sex offender in that new state at a time before the Attorney General issued his interim regulation violates the Ex Post Facto Clause.” Beasley, 2007 WL 3489999, at *3. If a defendant, like May, is not even subject to the Attorney General’s regulation under § 16913(d) (which we have already determined), then neither the promulgation of the regulation nor § 16913(d) would present an ex post facto clause problem in such a case. To the extent May challenges the overall applicability of SORNA, the ex post facto framework outlined in Smith leads to the conclusion SORNA does not violate the ex post facto clause. In analyzing an ex post facto violation, courts must first determine whether “the legislature meant the statute to establish ‘civil’ proceedings.” Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). If Congress intended SORNA to impose punishment for a pre-existing crime, the statute violates the ex post facto clause. See Smith, 538 U.S. at 92, 123 S.Ct. 1140. Conversely, if it was Congress’s intention “to enact a regulatory scheme that is civil and non-punitive,” courts must further examine “whether the statutory scheme is so punitive either in purpose or effect as to negate [Congress’s] intention to deem it civil.” Id. (internal citation and quotation marks omitted). To determine whether the statutory scheme at issue is punitive or regulatory, courts must determine whether Congress “indicated either expressly or impliedly a preference for one label or the other.” Smith, 538 U.S. at 93, 123 S.Ct. 1140. Congress stated its purpose in establishing a" }, { "docid": "21145593", "title": "", "text": "whether the statutory scheme is so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Hendricks, 521 U.S. at 361, 117 S.Ct. 2072 (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). Because we “ordinarily defer to the legislature’s stated intent, ... only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty,....” Smith, 538 U.S. at 92, 123 S.Ct. 1140 (internal citations and quotations omitted). “Whether a statutory scheme is civil or criminal ‘is first of all a question of statutory construction.’ ” Smith, 538 U.S. at 92, 123 S.Ct. 1140 (quoting Hendricks, 521 U.S. at 361, 117 S.Ct. 2072) (other citation omitted). We consider the statute’s text and its structure to determine the legislative objective. Smith, 538 U.S. at 92-93, 123 S.Ct. 1140 (citing Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)). We first ask whether the Tennessee Legislature, in passing the Acts, “indicated either expressly or impliedly a preference for one label or the other,” i.e., civil or criminal. Smith, 538 U.S. at 93, 123 S.Ct. 1140 (citing Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)). Regarding the Registration Act, the Tennessee Legislature expressed its regulatory objective in the text of the statute itself: To protect the safety and general welfare of the people of this state, it is necessary to provide for continued registration of offenders and for the public release of specified information regarding offenders. This policy of authorizing the release of necessary and relevant information about offenders to members of the general public is a means of assuring public protection and shall not be construed as punitive.... The general assembly also declares ... that in making information about certain offenders available to the public, the general assembly does not intend that the information be used to inflict retribution or additional punishment on any such offenders. Tenn.Code Ann. §§ 40—39—201(b)(6) and (8). With respect to" }, { "docid": "23696044", "title": "", "text": "S.Ct. 2072, 138 L.Ed.2d 501 (1997), and Hudson v. United States, — U.S.-, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). The Hendricks Court, as we noted earlier, rejected the petitioner’s claim of an ex post facto violation because the challenged civil commitment statute was not punitive in nature. See 117 S.Ct. at 2081-85; id. at 2085 (“Our conclusion that the Act is nonpunitive thus removes an essential prerequisite for both Hendricks’ double jeopardy and ex post facto claims.”). In so doing, the Court combined its analysis of the petitioner’s ex post facto and double jeopardy claims; according to the Court, the crucial inquiry in each claim was whether the challenged punishment was criminal in nature. See id. at 2085. For this reason, in adjudicating Newman’s ex post facto claim, we ascertain the nature of the restitution penalty according to the methodology recently endorsed by the Court in Hudson, 118 S.Ct. at 493, a case involving a double jeopardy claim. Under this framework, courts determine the character of a sanction by first examining “whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Id. (quoting United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). If the legislature nominally designates a penalty as civil or if the label is ambiguous, courts look deeper to see “whether the statutory scheme was so punitive either in purpose or effect ... as to transform] what was clearly intended as a civil remedy into a criminal penalty.” Id. (quotations omitted) (alteration in original). The Hudson Court deemed the following factors to be “useful guideposts” in this inquiry: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment—retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it;" }, { "docid": "7282293", "title": "", "text": "civil regulatory measure aiming at forestalling future harm or is instead punitive either in its purpose or effect. See Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). If the sole issue were professed legislative purpose, the answer would be obvious: the Act clearly states that its purpose is to “protect the public from sex offenders and offenders against children ... [by] establishing] a comprehensive national system for the registration of those offenders.” 42 U.S.C. § 16901. The mechanics of the statute’s registration scheme are consistent with this preventive aim. The Supreme Court has said that we “ordinarily defer to the legislature’s stated intent ... [and] only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Smith, 538 U.S. at 92, 123 S.Ct. 1140 (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) and Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (internal quotation marks omitted)). But, in principle, a statute declared by Congress to be regulatory rather than punitive can still be re-christened by a court under some circumstances. Thus, Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), asks whether a scheme -imposes an affirmative disability or restraint; -has been regarded in our history and traditions as a punishment; -comes into play only on a finding of scienter; -promotes the traditional aims of punishment; -applies to behavior that is already a crime; -has a rational connection to a nonpunitive purpose; and -is excessive with respect to this purpose. SORNA is surely burdensome for those subject to it. A sex offender must register in each jurisdiction where he resides, works, or goes to school, 42 U.S.C. § 16913(a), and he must periodically appear in person to verify and update certain information, and also to be photographed. Id. § 16916. Given his offenses, Parks will have to do this every three months for the rest of his life, id. §§ 16915(a), 16916(b), although the" }, { "docid": "20175003", "title": "", "text": "“to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act”). The question we must answer then is whether the application of SORNA’s juvenile registration provision is punitive. If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [Congress’s] intention to deem it “civil.” Doe, 538 U.S. at 92, 123 S.Ct. 1140 (internal citations and quotation marks omitted). S.E. has properly not disputed that in enacting SORNA, Congress intended to establish a civil regulatory scheme rather than a criminal one. We must then inquire whether SORNA’s juvenile registration provision is nevertheless punitive because (a) its purpose is to punish or (b) its effect is clearly shown to be punitive. Doe, 538 U.S. at 92-93, 123 S.Ct. 1140. Whether SORNA was passed with a punitive purpose, or whether the Attorney General applied SORNA retroactively in order to punish past conduct, has not been answered in our circuit. Because, however, we need not answer that question and because S.E. conceded at oral argument that Congress’s intent was not punitive, despite arguing to the contrary in his briefs, we will assume for the purposes of this case, without deciding the issue, that the answer is no. Congressional intent, and even the Attorney General’s, notwithstanding, we will find an ex post facto violation if the effect of SORNA’s juvenile registration provision is punitive. See Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). The Supreme Court has explained that, “[b]ecause we ordinarily defer to the legislature’s stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty .... ” Doe, 538 U.S. at 92, 123 S.Ct. 1140 (citation and quotation marks omitted). The requirement of “clearest proof’ is not, however, a requirement that the petitioner" }, { "docid": "22181236", "title": "", "text": "post facto framework outlined in Smith leads to the conclusion SORNA does not violate the ex post facto clause. In analyzing an ex post facto violation, courts must first determine whether “the legislature meant the statute to establish ‘civil’ proceedings.” Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). If Congress intended SORNA to impose punishment for a pre-existing crime, the statute violates the ex post facto clause. See Smith, 538 U.S. at 92, 123 S.Ct. 1140. Conversely, if it was Congress’s intention “to enact a regulatory scheme that is civil and non-punitive,” courts must further examine “whether the statutory scheme is so punitive either in purpose or effect as to negate [Congress’s] intention to deem it civil.” Id. (internal citation and quotation marks omitted). To determine whether the statutory scheme at issue is punitive or regulatory, courts must determine whether Congress “indicated either expressly or impliedly a preference for one label or the other.” Smith, 538 U.S. at 93, 123 S.Ct. 1140. Congress stated its purpose in establishing a comprehensive national system for registration of sex offenders was “to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators.” 42 U.S.C.A. § 16901. As was the case in Smith, SORNA’s registration requirement demonstrates no congressional intent to punish sex offenders. Congress described SORNA as a public safety measure. See § 16901. Even though Congress’s intent “was to enact a regulatory scheme that is civil and nonpunitive,” we must look further to see if the statutory scheme is so punitive that it negates Congress’s intention to deem the act civil. See Smith, 538 U.S. at 92, 123 S.Ct. 1140. “[0]nly the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Id. at 92, 123 S.Ct. 1140 (internal quotations omitted). The only punishment that can arise under SORNA comes from a violation of § 2250, which punishes convicted sex offenders who travel in interstate commerce after the enactment of SORNA and who fail to" }, { "docid": "7282292", "title": "", "text": "guidelines were promulgated by the Attorney General, and Parks makes no argument that the registration requirements took effect on an even later date. Parks suggests that we remand the matter to the district court for further consideration but does not explain what purpose would be served by a remand. Reynolds — a statutory interpretation decision — does not address Parks’ separate claim on appeal that applying SORNA to him violates the Ex Post Facto Clause, U.S. Const. Art. I, § 9, cl. 3. The most familiar argument in this vein — that Congress cannot criminalize conduct after it occurs — does not operate here because while Parks’ sexual offenses occurred preSORNA, the travel and failure to register for which he was punished occurred after SORNA. Thompson, 431 Fed.Appx. at 4. Rather, Parks invokes the Ex Post Facto Clause by arguing that SORNA’s registration requirements impermissibly increase his punishment for his earlier sexual offenses — an issue of law which we consider de novo. The Ex Post Facto argument turns on whether SORNA is deemed a civil regulatory measure aiming at forestalling future harm or is instead punitive either in its purpose or effect. See Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). If the sole issue were professed legislative purpose, the answer would be obvious: the Act clearly states that its purpose is to “protect the public from sex offenders and offenders against children ... [by] establishing] a comprehensive national system for the registration of those offenders.” 42 U.S.C. § 16901. The mechanics of the statute’s registration scheme are consistent with this preventive aim. The Supreme Court has said that we “ordinarily defer to the legislature’s stated intent ... [and] only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Smith, 538 U.S. at 92, 123 S.Ct. 1140 (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) and Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (internal quotation" }, { "docid": "3253090", "title": "", "text": "488. Hudson instructs courts to ask first “whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other,” and second, to inquire whether the statutory scheme is “so punitive in either purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty.” Id. at 99, 118 S.Ct. 488 (internal citations, quotation marks, and alteration omitted). This second inquiry, in turn, is to be resolved by consulting seven factors, originally enumerated in Kennedy v. Mendoza-Martinez: (1) “[wjhether the sanction involves an affirmative disability or restraint”; (2) “whether it has historically been regarded as a punishment”; (3) “whether it comes into play only on a finding of scienter”-, (4) “whether its operation will promote the traditional aims of punishment — retribution and deterrence”; (5) “whether the behavior to which it applies is already a crime”; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.” Hudson, 522 U.S. at 99-100, 118 S.Ct. 488 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)). Hudson cautioned that courts must consider these factors in relation to the facial meaning of the statute and warned that “only the clearest proof’ would “override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Id. at 100, 118 S.Ct. 488 (internal quotation marks and citation omitted). Applying these factors to administrative fines and occupational disbarment imposed by the Office of the Comptroller of the Currency (OCC) on bank officials for arranging loans in violation of federal statutes, the Court found the penalties civil in nature. Id. at 103-05, 118 S.Ct. 488. The Court recognized that the imposition of civil penalties on the misbehaving bankers would deter others from engaging in the same conduct, “a traditional goal of criminal punishment.” Id. at 105, 118 S.Ct. 488. “[T]he mere presence of this purpose,” however, did not suffice to transform a civil penalty into" }, { "docid": "15929406", "title": "", "text": "initially, a matter of statutory construction. A court must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Even in those cases where the legislature has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty. In making this latter determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963), provide useful guideposts, including: (1) “[w]hether the sanction involves an affirmative disability or restraint”; (2) “whether it has historically been regarded as a punishment”; (3) “whether it comes into play only on a finding of scienter”-, (4) “whether its operation will promote the traditional aims of punishment-retribution and deterrence”; (5) “whether the behavior to which it applies is already a crime”; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.” It is important to note, however, that “these factors must be considered in relation to the statute on its face,” id. at 169, 83 S.Ct. at 568, and only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty. Hudson v. United States, 522 U.S. 93, 99-100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (alterations and additional citations and quotations omitted). Thus, our first task is to discern whether the intent of the Utah legislature in allowing the Internet notification program was that the measure operate in a civil or criminal manner. If we determine that the legislature intended to establish a civil penalty, we must then inquire whether there exists the “clearest proof’ that the measure is so punitive in purpose or effect as to override the legislature’s intent. A. Legislative Intent The intent of the Utah legislature in passing the statute that allowed" }, { "docid": "12244162", "title": "", "text": "ex post facto challenge to a sex offender registration act is not a novel issue. In Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the Supreme Court provided an ex post facto framework in its analysis of Alaska’s Sex Offender Registration Act (ASORA) that leaves little room for doubt that SORNA is a civil scheme that is not subject to the Ex Post Facto Clause. In Smith, individuals who were convicted of sex offenses prior to the enactment of ASORA challenged the registration and notification requirements of ASORA on ex post facto grounds. The Supreme Court determined that ASORA was a nonpunitive, civil statute and, therefore, “its retroactive application [did] not violate the Ex Post Facto Clause.” 538 U.S. at 105-06, 123 S.Ct. 1140. The Supreme Court explained that in determining whether a law violates the Ex Post Facto Clause, a court must first “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.” Id. at 92, 123 S.Ct. 1140 (quoting Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). To do so, a court looks at the stated purpose of the statute as well as “the manner of its codification or the enforcement procedures it establishes.” Id. at 93-94, 123 S.Ct. 1140. If the purpose of the statute is to impose punishment, the inquiry ends; however, if the purpose is to enact a civil and nonpunitive regulatory scheme, the court must decide if the scheme is “so punitive either in purpose or effect as to negate [the legislature’s] intention to deem it civil.” Id. (internal quotation marks and citations omitted). The Supreme Court stated that absent “the clearest proof’ that what has been denominated a civil remedy is actually a criminal penalty, a court should defer to the legislature’s stated intent. Id. Applying this analysis, the Supreme Court determined that Alaska’s Sex Offender Registration Act is regulatory instead of punitive and that its registration requirements were not a violation of the Ex Post Facto Clause. Id. In accordance with Smith, the Court must determine whether Congress intended to make" }, { "docid": "5180501", "title": "", "text": "Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the Supreme Court ruled that Alaska’s sex offender registration law did not constitute retroactive punishment under the Ex Post Facto Clause. The Smith Court detailed the framework for the ex post facto inquiry for retrospective laws. See 538 U.S. at 92-96, 123 S.Ct. 1140. First, the Court must “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings” Id. at 92, 123 S.Ct. 1140 (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). If the legislature’s intent was to “impose punishment,” the statute is unconstitutional, but if the legislature’s intent “was to enact a regulatory scheme that is civil and non-punitive,” the court then must further examine “whether the statutory scheme is ‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Id. (quoting United States v. Ward, 448 U.S. 242, 248-249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). There must be “ ‘the clearest proof... to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Id. (quoting Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)). Whether a statutory scheme is civil or criminal “is first of all a question of statutory construction.” Id. (quoting Hendricks, 521 U.S. at 361, 117 S.Ct. 2072.) Therefore, the Smith Court considered the text and structure of the Alaska Act. See id. at 92-93, 123 S.Ct. 1140. The Alaska legislature’s expressed intent in the statutory text was to “protect[] the public from sex offenders” and “[t]he legislature further determined that ‘release of certain information about sex offenders to the general public will assist in protecting the public safety.’ ” Id. at 93, 123 S.Ct. 1140 (citation omitted). The respondents in Smith, who challenged the constitutionality of the Act and asserted that its purpose was punitive, pointed out that the goal of “public safety” is “one of the purposes of criminal administration.” Id. at 93, 123 S.Ct. 1140. The Court disagreed, and explained that “where" }, { "docid": "5180500", "title": "", "text": "Ex Post Facto Clause Cotton argues that SORNA violates the Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3, which prohibits Congress from enacting any law which “imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Weaver v. Graham, 450 U.S. 24, 28-31, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); see Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (“[T]he constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.”). Cotton alleges that SORNA imposes an enhanced penalty that did not exist at the time he pled guilty to and was convicted of a sex offense in 1997. Def.’s Mot. at 21. And Cotton contends that, despite SOR-NA’s stated intent as a civil and nonpunitive regime, the law is so punitive in its purpose and effects that it nonetheless violates the Ex Post Facto Clause. See id. at 21-22. In Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the Supreme Court ruled that Alaska’s sex offender registration law did not constitute retroactive punishment under the Ex Post Facto Clause. The Smith Court detailed the framework for the ex post facto inquiry for retrospective laws. See 538 U.S. at 92-96, 123 S.Ct. 1140. First, the Court must “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings” Id. at 92, 123 S.Ct. 1140 (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). If the legislature’s intent was to “impose punishment,” the statute is unconstitutional, but if the legislature’s intent “was to enact a regulatory scheme that is civil and non-punitive,” the court then must further examine “whether the statutory scheme is ‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Id. (quoting United States v. Ward, 448 U.S. 242, 248-249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). There must be “ ‘the clearest proof... to override legislative" }, { "docid": "21145592", "title": "", "text": "(quoting Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987)). “ ‘[T]he focus of the ex post facto inquiry,’ ” however, “ ‘is not whether a legislative change produces some ambiguous sort of ‘disadvantage’ ... but on whether any such change alters the definition of criminal conduct or increases the penalty by which the crime is punishable.’ ” Dyer v. Bowlen, 465 F.3d 280, 289 (6th Cir.2006) (quoting Calif. Dept. of Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995)). When evaluating an ex post facto claim, our first task is to “ascertain whether the legislature meant to establish ‘civil’ proceedings.” Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).) If the intent of the legislature was to impose punishment, that ends the inquiry. If, however, “ ‘the intention was to enact a regulatory scheme that is civil and nonpunitive, we further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Hendricks, 521 U.S. at 361, 117 S.Ct. 2072 (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). Because we “ordinarily defer to the legislature’s stated intent, ... only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty,....” Smith, 538 U.S. at 92, 123 S.Ct. 1140 (internal citations and quotations omitted). “Whether a statutory scheme is civil or criminal ‘is first of all a question of statutory construction.’ ” Smith, 538 U.S. at 92, 123 S.Ct. 1140 (quoting Hendricks, 521 U.S. at 361, 117 S.Ct. 2072) (other citation omitted). We consider the statute’s text and its structure to determine the legislative objective. Smith, 538 U.S. at 92-93, 123 S.Ct. 1140 (citing Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)). We first ask whether the Tennessee Legislature, in" }, { "docid": "19974972", "title": "", "text": "of SORNA’s retroactive registration scheme as a whole. Under Smith v. Doe, we engage in a two-part analysis to determine whether the retroactive application of a statute violates the Ex Post Facto Clause in this fashion. 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). First, we “ ‘ascertain whether the legislature meant the statute to establish “civil” proceedings.’ ” Id. at 92, 123 S.Ct. 1140 (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). If Congress indeed intended via the statute to “enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is ‘so punitive either in purpose or effect as to negate [Congress’s] intention’ to deem it ‘civil.’ ” Id. (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). The court normally defers to Congress’s stated intent, and therefore “ ‘only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.’ ” Id. (quoting Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)). SORNA is both civil in its stated intent and nonpunitive in its purpose, similar to the scheme in Smith, and therefore does not violate the Ex Post Facto Clause. Mr. Lawrance attempts to distinguish the statutory scheme in Smith, but it is unavailing. In enacting SORNA, Congress expressly declared its intent to create a “comprehensive national system for the registration” of sex offenders, “[i]n order to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators.” 42 U.S.C. 16901. To overcome this clearly stated congressional intent, Mr. Lawrance draws two distinctions between SORNA and the Smith scheme, arguing that, unlike Smith, (1) the placement of SORNA’s failure to register provisions appear in the federal criminal code, and (2) the enforcement of SORNA is vested in the United States Attorney General. We are not persuaded. First, the registration provisions in Smith were actually codified in Alaska’s" }, { "docid": "6611147", "title": "", "text": "must first ask whether the legislature, “in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Ward, 448 U.S., at 248[, 100 S.Ct., at 2641], Even in those cases where the legislature “has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect,” id. at 248-249[, 100 S.Ct., at 2641], as to “transform] what was clearly intended as a civil remedy into a criminal penalty,” Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149 (1956). In making this latter determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554[, 567-68], 9 L.Ed.2d 644 (1963), provide useful guideposts, including: (1) “[w]hether the sanction involves an affirmative disability or restraint”; (2) “whether it has historically been regarded as a punishment”; (3) “whether it comes into play only on a finding of scienter”; (4) “whether its operation will promote the traditional aims of punishment—retribution and deterrence”; (5) “whether the behavior to which it applies is already a crime”; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.” It is important to note, however, that “these factors must be considered in relation to the statute on its face,” id. at 169[, 83 S.Ct., at 568], and “only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty, Ward, supra, at 249, 100 S.Ct., at 2641-2642 (internal quotation marks omitted). Hudson v. United States, — U.S. -, -, 118 S.Ct. 488, 493, 139 L.Ed.2d 450 (1997). It is evident that Congress intended the penalty for violations of the Commodities Exchange Act to be civil in nature. The Act expressly provides that the Commission may assess a “civil penalty ... for each such violation____” 7 U.S.C. § 9 (emphasis added). Furthermore, the fact that the authority to issue the" }, { "docid": "19974971", "title": "", "text": "punishes him for a sexual offense committed prior to the Act’s effective date of July 27, 2006, and (2) that SORNA punishes him for interstate travel occurring prior to July 27, 2006. The district court rejected these arguments. The district court determined that SORNA is a “civil regulatory scheme with neither a punitive purpose nor effect,” rather than a means to inflict retroactive punishment on past offenders. Lawrance, 2007 WL 5271934, at *4. It does not punish Mr. Lawrance for his “pre-SORNA conduct; instead, it penalizes him for his post-SORNA failure to register.” Id. at *5. We recently confronted this issue in United States v. Hinckley, 550 F.3d 926, 935-38, 2008 WL 5146353 (10th Cir.2008), and consistent with that decision, reject these arguments. Just as in Hinckley, Mr. Law-rance argues that SORNA violates the Ex Post Facto Clause by retroactively increasing punishment for past offenses. While Mr. Lawrance is actually being punished for his failure to register after traveling in interstate commerce, and not for his prior sexual offense, we address his argument in light of SORNA’s retroactive registration scheme as a whole. Under Smith v. Doe, we engage in a two-part analysis to determine whether the retroactive application of a statute violates the Ex Post Facto Clause in this fashion. 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). First, we “ ‘ascertain whether the legislature meant the statute to establish “civil” proceedings.’ ” Id. at 92, 123 S.Ct. 1140 (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). If Congress indeed intended via the statute to “enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is ‘so punitive either in purpose or effect as to negate [Congress’s] intention’ to deem it ‘civil.’ ” Id. (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). The court normally defers to Congress’s stated intent, and therefore “ ‘only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a" }, { "docid": "21145596", "title": "", "text": "1140 (quoting Hendricks, 521 U.S. at 363, 117 S.Ct. 2072) (emphasis added). Here, as in Smith (Alaska’s requirement that released sex offenders register and submit quarterly verifications) and Hendricks (post-incarceration confinement of sex offenders), nothing on the face of the statutes suggest that the legislature sought to create anything other than a civil scheme designed to protect the public from harm. Smith, 538 U.S. at 93, 123 S.Ct. 1140 (citing Hendricks, 521 U.S. at 361, 117 S.Ct. 2072). Accordingly, we agree with the district court that the Tennessee Legislature’s purpose in enacting the challenged provisions of the Acts was to create a civil, nonpunitive regime. Notwithstanding our ascertainment of legislative intent, we must still analyze the practical effect of the challenged provisions of the Acts. The Supreme Court directs us to use these factors in assessing the provisions’ actual effect on sex offenders such as Doe: whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with regard to this purpose. Smith, 538 U.S. at 97, 123 S.Ct. 1140 (discussing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)). Although these factors are “most relevant to our analysis,” they are not necessarily exhaustive or dis-positive. Id The Acts’ registration, reporting, and surveillance components are not of a type that we have traditionally considered as a punishment, and the district court further correctly found that they do not constitute an affirmative disability or restraint in light of the legislature’s intent. The Registration and Monitoring Acts do not increase the length of incarceration for covered sex offenders, nor do they prevent them from changing jobs or residences or traveling to the extent otherwise permitted by their conditions of parole or probation. Perhaps most significantly, the Supreme Court held recently, in sustaining the Alaska Sex Offender Registration Act against an ex post facto challenge, that lifetime registration and monitoring of sexual offenders is “less harsh” than" } ]

[ { "docid": "22830367", "title": "", "text": "chiefs vehicle. Petty Officer Collins testified the chiefs truck did not have a back seat. More importantly, appellant stated that this purchase occurred in late February or early March of 1995. This was refuted by Petty Officer Collins, who testified that the conversation occurred sometime in April. He was able to pinpoint the time because of a big snow storm in early March. DISCUSSION 1. Issues I & II Appellant argues that the lower court did not conduct a proper legal and factual-sufficiency analysis because (1) there is no direct evidence that appellant stole or wrongfully appropriated the modem; (2) the lower court did not adequately take into account appellant’s good military character in accordance with United States v. Pond, 17 USCMA 219, 38 CMR 17 (1967); and (3) the lower court did not consider Article 32, UCMJ, 10 USC § 832, testimony indicating that the model number of the modem received by the MCRC in November of 1994 was different from the replacement modem appellant brought to work in March of 1995. Standard of Review The test for legal sufficiency requires courts to review the evidence in the light most favorable to the Government. If any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the evidence is legally sufficient. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Turner, 25 MJ 324 (CMA 1987). The test for factual sufficiency “is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses,” the court is “convinced of the accused’s guilt beyond a reasonable doubt.” Turner, 25 MJ at 325. Viewed as a whole, we hold that the evidence is legally sufficient for a rational fact-finder to find beyond a reasonable doubt that appellant stole the modem and then engaged in an elaborate cover-up after the modem was discovered to be missing, including making false official statements. We affirm the court below in finding the evidence to be legally and factually sufficient. Larceny/Wrongful Appropriation Appellant" } ]

[ { "docid": "13491628", "title": "", "text": "and the trial court failed to state its reasons for imposing the sentence as required by Louisiana law. The district court held that there was no merit to any of Edwards’ claims and thus denied the petition. Edwards filed a timely notice of appeal. II A. Edwards’ first contention is that the state’s evidence was insufficient to prove beyond a reasonable doubt that he was guilty of the crime charged. Edwards was charged with and convicted of aggravated rape under La.Rev.Stat.Ann. § 14:42(A)(2) (West 1986). The statute defines “aggravated rape” as anal or vaginal intercourse without the consent of the victim “[w]hen the victim is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution.” In Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979), the Supreme Court held that where a habeas petitioner challenges the sufficiency of the evidence on due process grounds, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Given Doty’s testimony that Vining was armed with a knife and that Edwards joined in the rape, as well as the testimony of her neighbors and the medical and psy chological experts, we hold that a reasonable jury could easily conclude beyond a reasonable doubt that Edwards raped Doty and that her resistance was prevented by “threats of great and immediate bodily harm.” Thus, Edwards’ insufficiency of the evidence argument is without merit. B. Edwards contends that the Louisiana aggravated rape statute is unconstitutionally vague because the definition of aggravated rape at the time of the offense was indistinguishable from the statutory definition of forcible rape. La.Rev.Stat.Ann. § 14:42.1(A) (West 1986) defined forcible rape as a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably" }, { "docid": "7471067", "title": "", "text": "(the view urged upon the trial court and us by the appellant), or of anal intercourse (as the government counsel contend), which brought about the charge of sodomy. The appellant pleaded guilty to the adultery and wrongful videotaping of his sexual encounters with his nonmarital partners. He pleaded not guilty to sodomy. Other than the film, the only evidence about the act is the testimony of the woman involved, who admitted vaginal, but denied anal, intercourse. SUFFICIENCY OF THE EVIDENCE The first assignment of error requires that we find whether the appellant engaged in vaginal or anal intercourse. Our responsibility and power are clear: Under Article 66(c) of the Uniform Code, 10 U.S.C. § 866(c), the Court of Military Review has the duty of determining not only the legal sufficiency of the evidence but also its factual sufficiency. The test for the former 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). For factual sufficiency, the test is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the Court of Military Review are themselves convinced of the accused’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324-325 (C.M.A.1987). After many minutes of foreplay and vaginal intercourse in the “missionary” and related positions, the appellant turns his partner around so that she supports herself on her knees while the appellant enters her. But what part of her does he enter? If her vagina, he merely continues the adulterous affair with another act of “normal” sexual intercourse. If, however, he penetrates her anus, he violates Article 125. We are satisfied that the appellant entered his partner’s anus, rather than her vagina, and that the standards for legal and factual sufficiency have been met. MULTIPLICITY Appellant next asserts that the trial judge erred in failing, sua sponte, either to consolidate the sodomy charge" }, { "docid": "15275478", "title": "", "text": "ANDERSON, Judge: A military judge, sitting as a general court-martial, convicted the appellant, following mixed pleas, of rape, forcible oral sodomy, assault with a dangerous weapon, indecent assault, and aggravated sexual abuse in violation of Articles 120, 125, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925, 928, and 934 (1994). The appellant was sentenced to confinement for 30 years, forfeiture of all pay and allowances, reduction to pay-grade E-l, and a dishonorable discharge. The convening authority approved the sentence as adjudged. After carefully considering the record of trial, the appellant’s seven assignments of error, his request for a new trial, his mo tions for a DuBay hearing, and the Government’s responses, we conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. See Arts. 59(a) and 66(c), UCMJ. In addition, we deny the appellant’s petition for a new trial and his motions for a DuBay hearing. Although none of the assignments of error have merit, we address below those that warrant further discussion. Factual and Legal Sufficiency The appellant contends that the evidence is legally and factually insufficient to sustain his convictions for the rape, forcible sodomy, assault with a dangerous weapon, indecent assault, and aggravated sexual abuse. We disagree. Cl — 33 The test for legal sufficiency is whether a reasonable factfinder, viewing the evidence in the light most favorable to the prosecution, could find all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). For factual sufficiency, the test is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, this court is convinced of the appellant’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324, 325 (C.M.A.1987). The term reasonable doubt does not mean that the evidence must be free from conflict. United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). 1. Appellant’s Testimony At trial," }, { "docid": "4234673", "title": "", "text": "Childress & Martha Davis, Federal Standards of Review § 9.01 at 9-2 (3rd ed.1999). The legal test is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). An element of assault is that the attempt, offer, or “bodily harm” be done “with unlawful force or violence.” The act “must be done without legal justification or excuse and without the lawful consent of the person affected.” Para. 54c(1)(a), Part IV, Manual for Courts-Martial, United States (1995 ed.). Based on this record, we conclude that no rational trier of fact could have found beyond a reasonable doubt that TH did not consent to the kissing and sexual touching that occurred in the conference room. We agree with our dissenting colleagues that TH told appellant to stop when he began progressing toward sexual intercourse. We disagree with their conclusion that a rational factfinder could find that appellant went beyond the sexual conduct to which TH consented. The dissenters assert that TH told appellant “to stop touching her body improperly.” 54 MJ at 97. In our view, the dissenters fail to adequately consider the context of TH’s testimony, both in respect to the situation in which the words were spoken and her conduct afterwards. TH did not tell appellant to stop touching her; she told him that she did not want to have sexual intercourse with him. TH admitted that she knew appellant was being “flirtatious.” She invited herself to the movie in the day room, sneaked out of her barracks room, and voluntarily followed him into the conference room. She admitted that she was interested in and infatuated with appellant. She admitted that she was “a willing participant.” When appellant left the room to check on the CQ, she waited for him to return. She cooperated when he told her to he “belly down” on the table, straddled her, and began massaging her. When appellant indicated, by" }, { "docid": "4234672", "title": "", "text": "witness in rebuttal, TH testified that she did not report her relationship with appellant to anyone in her command. She did not know how her command found out about it. She was summoned by her senior drill sergeant and questioned by her commander, and she told them what had happened between appellant and her. The defense theory was that PFC TH’s testimony was “total lurid fiction,” and that the incidents never happened. In closing arguments, defense counsel argued that the government witnesses were not truthful and could not be trusted. During a conference on proposed instructions, the military judge stated, “[A]s I understand it, the defense is arguing an all or nothing. On that basis, I don’t intend to give instructions by exceptions and substitutions.” Defense counsel agreed. Neither the military judge nor counsel for either side mentioned an instruction on mistake of fact. Defense counsel did not request any additional instructions or object to the instructions that were given. Discussion Legal sufficiency is a question of law that we review de novo. 2 Steven Childress & Martha Davis, Federal Standards of Review § 9.01 at 9-2 (3rd ed.1999). The legal test is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). An element of assault is that the attempt, offer, or “bodily harm” be done “with unlawful force or violence.” The act “must be done without legal justification or excuse and without the lawful consent of the person affected.” Para. 54c(1)(a), Part IV, Manual for Courts-Martial, United States (1995 ed.). Based on this record, we conclude that no rational trier of fact could have found beyond a reasonable doubt that TH did not consent to the kissing and sexual touching that occurred in the conference room. We agree with our dissenting colleagues that TH told appellant to stop when he began progressing toward sexual intercourse. We disagree with their conclusion that a rational" }, { "docid": "14484062", "title": "", "text": "she’s telling the truth,’ and send myself to prison?” Appellant’s defense was that he had consensual sexual intercourse with PFC P. In contending the evidence is insufficient to support the conviction of rape, he points to the following factors: (a) appellant and victim’s height and weight were comparable, increasing the possibility of successful resistance; (b) PFC P’s failure to scream when immediate assistance could have been rendered by her roommates and others showed lack of resistance; (c) no one overheard the alleged forcible sexual intercourse; (d) while under the influence of alcohol, appellant was more inclined to mistake lack of resistance for consent; (e) others knew of the sexual contact between appellant and PFC P and she did not want her boyfriend to learn of it; (f) appellant would not likely have left his ID card and T-shirt in PFC P’s room if he had raped her; (g) appellant would not have permitted PFC P to strike him if he had raped her; (h) the rape was not reported until after another alleged sexual assault by appellant was reported; (i) it is unlikely that anyone would commit a rape with two other people sleeping in the same room; (j) the failure of PFC P to report the incident immediately.. In determining if the evidence is legally sufficient to support a conviction, the test is whether after viewing the evidence most favorable to the prosecution, any rational trier of fact would have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979); United States v. Hart, 25 M.J. 143 (C.M.A.1987). In addition to determining legal sufficiency, this court must also find factual sufficiency. See Article 66, UCMJ, 10 U.S.C. § 866 (1982). In such determination, of course, we must pay due deference to the trier of fact below who heard and saw the witnesses. Applying this principle to the facts before us, we are convinced beyond a reasonable doubt that the evidence of record supports the conviction of rape. II Failure to Grant Rule 305(k)" }, { "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": "2639268", "title": "", "text": "extending past the five-year limitations period. This Court has the additional obligation of reviewing the findings under Article 66(c), UCMJ, 10 U.S.C. § 866(c). We will approve only those findings of guilt we determine to be correct in both law and fact. The test for legal sufficiency is whether, when the evidence is viewed in the light most favorable to the government, any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A reasonable doubt has often been described as one “based on reason which arises from the evidence or lack of evidence.” Johnson v. Louisiana, 406 U.S. 356, 360, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) (and cases cited therein). The test for factual sufficiency is whether, after weighing the evidence and making allowances for not having observed the witnesses, we ourselves are convinced of the appellant’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324, 325 (C.M.A.1987). But see United States v. Washington, 54 M.J. 936, 941 (A.F.Ct.Crim.App.2001) (suggesting that Congress intended this Court to employ a preponderance of the evidence test in determining the factual sufficiency of the evidence). The victim testified at length. Regarding the incidents which formed the allegations of indecent acts with another in Specification 3, Charge IV, she testified about a specific incident that occurred in Rocky Bayou, off Choctawhatchee Bay, Florida, where the appellant put his hands inside her bathing suit and fondled her breasts and genital area. She also testified that the appellant touched her inappropriately on many other occasions, but that it occurred so often that she could not pinpoint specific dates or circumstances. The victim was unable to state when the incident at Rocky Bayou occurred. She indicated she moved to the Niceville, Florida, area in July 1994, while the appellant was still stationed in Iceland. The witness recalled that the appellant moved back to Nieeville, Florida, “a few months into the school year.” The accused testified that he left Iceland and returned to Niceville," }, { "docid": "12120954", "title": "", "text": "In the sense that an intent to do the actus reus (here, an act resulting in bodily harm) is a general intent, the military judge was correct. See United States v. Redding, 14 USCMA 242, 244-45, 34 CMR 22, 24-25 (1963); 2 Wharton’s Criminal Law § 178 at 295 (C. Tortia 14th ed.1979). See also para. 3-107b, Military Judges’ Benchbook at 3-219 (1 May 1982) (“A T batteryd is defined as an unlawful and intentional” crime). See generally W. LaFave and A. Scott, Substantive Criminal Law § 3.5(e) at 313 (1986). D Sufficiency of Evidence The final question we must decide is whether the prosecution introduced sufficient evidence to prove beyond a reasonable doubt that appellant intentionally had unprotected sexual intercourse with his sexual partners. See generally Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The Court of Military Review noted the evidence introduced at this trial and held that this evidence established this intent uncontrovertedly. 36 MJ at 550-51. We agree. II The second issue in this case is whether the military judge properly found appellant guilty of committing indecent acts, in violation of Article 134, as a lesser-included offense of the charged offense of rape, a violation of Article 120. See Art. 79, UCMJ, 10 USC § 879. We think so. Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). See also United States v. Teters, 37 MJ 370 (CMA 1993), cert. denied, — U.S. -, 114 S.Ct. 919, 127 L.Ed.2d 213 (1994). Article 120 proscribes rape as follows: (a) Any person subject to this chapter who commits an act of sexual intercourse [with a female not his wife], by force and without [her] consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.[ ] Paragraph 45, Part IV, Manual, supra, explains the elements of this offense, as follows: b. Elements. (1) Rape. (a) That the accused committed an act of sexual intercourse with a certain female; (b) That the female was not the accused’s wife;" }, { "docid": "7135694", "title": "", "text": "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 (C.M.A.1987) (emphasis added). “Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That is not the standard for review of evidence by the Courts of Military Review. Article 66(c), UCMJ, 10 U.S.C. § 866(c), gives us the responsibility to review a case for both factual and legal sufficiency. In fact, United States v. Turner makes this clear. In Turner, the Court of Military Appeals sets out the full test, pointing out that: [T]he Court of Military Review has the duty of determining not only the legal sufficiency of the evidence but also its factual sufficiency. The test for the former 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. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). For factual sufficiency, the test is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the Court of Military Review are themselves convinced of the accused’s guilt beyond a reasonable doubt. Turner, 25 M.J. at 324-325. It is this second provision, the test for factual sufficiency, which is lacking from the government’s statement of the test. The appellant was charged in Specification 1 of the Charge with wrongful use of cocaine on divers occasions from on or about 1 July 1988 to on or about 28 February 1989. Applying the proper test, we are not convinced that the evidence was sufficient to prove the specification as charged. The government produced two witnesses and" }, { "docid": "3092906", "title": "", "text": "2007 WL 3025080, 2007 CCA LEXIS 428 (N.M.Ct.Crim.App. 11 Oct. 2007). As the appellant has not made the requisite showing of substantial prejudice, we do not need to reach the next question, whether the variance between the charged offense and the convicted offense was “material.” Article 125, and Legal and Factual Sufficiency The appellant alleges legal and factual insufficiencies with respect to the conviction for consensual sodomy. First, the appellant argues that Marcum’s three-part test essentially alters the elements that the Government must prove in order to sustain a conviction for consensual oral sodomy under Article 125. Accordingly, the appellant claims, the Government’s proof at trial was legally and factually insufficient. We address this claim de novo. See, e.g., United States v. Beatty, 64 M.J. 456 (C.A.A.F.2007). The test for legal sufficiency is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F.2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The test for factual sufficiency is whether, “after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of [the appellate court] are themselves convinced of the accused’s guilt beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A.1987). We start our analysis with an examination of the elements of the crime. As to the offense of consensual sodomy, the Government must have proved that the accused engaged in unnatural copulation with a certain other person. Unnatural copulation includes the placing of the accused’s sexual organ in the mouth of another person. Turning to the evidence, we note that RM testified that the appellant placed his penis in her mouth. That testimony alone is certainly sufficient to lead any trier of fact to reasonably conclude beyond a reasonable doubt that the appellant’s actions met the elements of Article 125. The appellant argues, however, that the Marcum factors are additional" }, { "docid": "7279413", "title": "", "text": "first, but then “pushed him away” stating, “Bullshit, you don’t even know me.” Private S then headed towards the door. Appellant grabbed Private S and kissed her again. She attempted to leave several times, but each time appellant grabbed her. He continued trying to kiss her, and he pulled her pants down. Private S then noticed she was menstruating and said: “See, look, we can’t do this anyway.” She “pulled up” her pants. Appellant then pulled down his pants and placed Private S’s hand “on his penis.” He pushed her to the floor, and she passed out. She remembered regaining consciousness and realizing that appellant “was penetrating” her, but she could not move and passed out again. She next remembered waking up in the hallway after apparently having been unconscious for some time. Around one o’clock in the morning, Private S was fumbling with the lock on her barracks door when she awakened her roommate, Private Westfall, who opened the door and let her in. A short time later, Westfall heard Private S in the bathroom crying. On being questioned, Private S told Westfall “that she thought she had been raped.” Westfall reported the incident to Sergeant Smith. Appellant, after observing Westfall and Smith conversing, asked Smith what they had talked about and stated, “I didn’t force her to do anything.” I Rape To prove rape, the Government must show beyond a reasonable doubt: (a) That the accused committed an act of sexual intercourse with a certain female; (b) That the female was not the accused’s wife; and, (c) That the act of sexual intercourse was done by force and without her consent. Para. 45b(l), Part IV, Manual for Courts-Martial, United States, 1984. Appellant claims that the Government failed to prove beyond a reasonable doubt element (c)— “by force and without her consent.” On sufficiency-of-the-evidence questions, this Court draws reasonable inferences from the record in favor of the prosecution. United States v. Blocker, 32 MJ 281, 284 (CMA 1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The question of Private S’s" }, { "docid": "3533829", "title": "", "text": "asked if she understood the difference between truth and falsehood prior to her direct testimony. She was sworn to that direct testimony prior to cross-examination and asked if her prior testimony was accurate. Also, she was properly sworn again when recalled for additional testimony later in the trial. Under these circumstances, this court is satisfied that the witness was testifying under an oath sufficient to “awaken the witness's conscience and impress the victim’s mind with the duty” to testify truthfully. Mil. R. Evid. 603. Therefore, we decline to grant relief. Legal and Factual Sufficiency The appellant contends that the evidence was both legally and factually insufficient to sustain his conviction for carnal knowledge and indecent acts with a child. We disagree. The test for legal sufficiency is whether, considering the evidence in the light most favorable to the Government, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Turner, 25 M.J. 324-25, (C.M.A.1987); United States v. Reed, 51 M.J. 559, 561-62 (N.M.Ct.Crim.App.1999), aff'd, 54 M.J. 37 (C.A.A.F.2000); see also Art. 66(c), UCMJ. The test for factual sufficiency is whether, after weighing all the evidence in the record of trial and recognizing that we did not see or hear the witnesses, as did the trial court, this court is convinced of the appellant’s guilt beyond a reasonable doubt. Turner, 25 M.J. at 325; see also Art. 66(c), UCMJ. In this case, the appellant’s averments on appeal are nothing more than a restatement of the arguments made by trial defense counsel at the close of the case on the merits regarding the length of time between the alleged incidents and the beginning of trial, the number of interviews that the child witness had undergone, the improbability that the acts occurred at all based on the physical evidence or lack thereof, and the inconsistencies in the testimony of the child witness and her mother. The appellant further asserts that there was no evidence presented at trial regarding vaginal" }, { "docid": "21256686", "title": "", "text": "to prove the crime of rape and that the military judge erred by admitting, over the trial defense counsel’s objection, a Criminal Investigation Command (CID) special agent’s testimony under Military Rule of Evidence 803(1) [hereinafter Mil.R.Evid.], as a present sense impression exception to the hearsay rule. While we find appellant’s second assignment of error to be meritorious, we find any error to be harmless in the total context of the case. We affirm the findings and sentence. LEGAL AND FACTUAL SUFFICIENCY OF THE RAPE GUILTY FINDING LAW The test for legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the government, a court could rationally find the existence of every element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Blocker, 32 M.J. 281, 284 (C.M.A.1991). The test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, this court is convinced of appel lant’s guilt beyond a reasonable doubt. UCMJ art. 66(c); United States v. Turner, 25 M.J. 324 (C.M.A.1987). Where the evidence raises defenses, the government must also prove beyond a reasonable doubt that the defense so raised does not apply. United States v. Berri, 33 M.J. 337 (C.M.A.1991); Rules for Courts-Martial 916(b) and (j) [hereinafter R.C.M.]. FACTS Appellant and two other soldiers met the victim at a servicemembers’ club. Her ser-vicemember husband had for all intents and purposes abandoned the five-month pregnant victim earlier in the evening. At closing time the victim accompanied the three soldiers back to the barracks where a party was purportedly taking place. No party was taking place in the barracks. In the barracks appellant and his friends continued drinking beer and gave the victim some snack cakes to eat. The victim testified that she was subsequently held down, forcibly undressed, and raped by the three soldiers. Appellant and the two co-defendants each had sexual intercourse with the victim at least , once during the course of conduct. The" }, { "docid": "12129527", "title": "", "text": "Discussion 33. The test for legal sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Turner, 25 MJ 324 (CMA 1987). We hold that the evidence in this case is not legally sufficient to uphold a conviction of indecent assault. 34. The basic factual question in this case is, “Who did what?” The evidence concerning the “who” is sparse. Sgt Perez was appellant’s supervisor. He and appellant appear to have been equally involved in the scheme to keep Nicole away from home overnight and get her grossly intoxicated. Each had opportunities to be alone with Nicole while she was intoxicated, both in the van and in appellant’s apartment. Sgt Perez was never asked if he assaulted Nicole, and he never expressly denied it; but he testified that he suggested to appellant that they not take advantage of Nicole. If Sgt Perez is believed, notwithstanding his ample motives to shift the blame to appellant, it may be inferred that he acted in conformity with his testimony that he “didn’t feel right” about sexual contact with Nicole and therefore did not assault her. Viewing the evidence in the light most favorable to the prosecution and drawing all permissible inferences, it may be inferred that if anything was done to Nicole, appellant rather than Sgt Perez did it. 35. However, what happened cannot be determined on the basis of the evidence. The Court of Military Review found the evidence of rape factually insufficient. See Art. 66(c), UCMJ, 10 USC § 866(c). That decision is not reviewable. See Art. 67(c), UCMJ, 10 USC § 867(c) (1989). Therefore, the only question before us is whether there is evidence from which a rational factfinder could find that appellant committed the indecent assault found by the Court of Military Review, ie., “by touching the victim’s vagina with his penis and/or hand.” Unpub." }, { "docid": "7279414", "title": "", "text": "bathroom crying. On being questioned, Private S told Westfall “that she thought she had been raped.” Westfall reported the incident to Sergeant Smith. Appellant, after observing Westfall and Smith conversing, asked Smith what they had talked about and stated, “I didn’t force her to do anything.” I Rape To prove rape, the Government must show beyond a reasonable doubt: (a) That the accused committed an act of sexual intercourse with a certain female; (b) That the female was not the accused’s wife; and, (c) That the act of sexual intercourse was done by force and without her consent. Para. 45b(l), Part IV, Manual for Courts-Martial, United States, 1984. Appellant claims that the Government failed to prove beyond a reasonable doubt element (c)— “by force and without her consent.” On sufficiency-of-the-evidence questions, this Court draws reasonable inferences from the record in favor of the prosecution. United States v. Blocker, 32 MJ 281, 284 (CMA 1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The question of Private S’s consent or lack thereof is partially clouded by her inability to recall some of the events. Indeed, her testimony admits of some uncertainty as to whether she may have consent ed or sent appellant “the wrong signals.” The question for us to resolve is whether the evidence presented at trial was sufficient for a reasonable factfinder to find all the essential elements beyond a reasonable doubt. United States v. Turner, 25 MJ 324 (CMA 1987), citing Jackson v. Virginia, supra. Appellant argues that an inference can be drawn that Private S did, in fact, consent. While such an inference might be drawn, so might the contrary inference, i.e., that she did not consent. A reading of Private S’s trial testimony reveals that her uncertainty as to consent extended only to those moments when she was unconscious. She clearly stated: “Yes, I guess I expressed a doubt because—well, with not remembering part of it, being passed out, how can you be positively sure about anything if you don’t remember it, Ma’am.” The military judge attempted to" }, { "docid": "21256685", "title": "", "text": "OPINION OF THE COURT TOOMEY, Senior Judge: In accordance with his pleas, appellant was convicted of absence without leave, adultery, and indecent acts with another in violation of Articles 86 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886 and 934 (1988) [hereinafter UCMJ]. Contrary to his pleas, a military judge sitting as a general court-martial found the appellant guilty of rape in violation of Article 120, UCMJ, 10 U.S.C.A. § 920. The military judge found the appellant not guilty of forcible sodomy in violation of Article 125, UCMJ, 10 U.S.C.A. § 925. The convening authority approved the adjudged sentence of a bad-conduct discharge, confinement for thirteen months, and forfeiture of all pay and allowances. This case is before the court for review under Article 66, UCMJ, 10 U.S.C.A. § 866. We have considered the record of trial, appellant’s two assignments of error, matters raised by the appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), and the government’s reply thereto. Appellant contends that the evidence was legally and factually insufficient to prove the crime of rape and that the military judge erred by admitting, over the trial defense counsel’s objection, a Criminal Investigation Command (CID) special agent’s testimony under Military Rule of Evidence 803(1) [hereinafter Mil.R.Evid.], as a present sense impression exception to the hearsay rule. While we find appellant’s second assignment of error to be meritorious, we find any error to be harmless in the total context of the case. We affirm the findings and sentence. LEGAL AND FACTUAL SUFFICIENCY OF THE RAPE GUILTY FINDING LAW The test for legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the government, a court could rationally find the existence of every element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Blocker, 32 M.J. 281, 284 (C.M.A.1991). The test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, this court is" }, { "docid": "21256687", "title": "", "text": "convinced of appel lant’s guilt beyond a reasonable doubt. UCMJ art. 66(c); United States v. Turner, 25 M.J. 324 (C.M.A.1987). Where the evidence raises defenses, the government must also prove beyond a reasonable doubt that the defense so raised does not apply. United States v. Berri, 33 M.J. 337 (C.M.A.1991); Rules for Courts-Martial 916(b) and (j) [hereinafter R.C.M.]. FACTS Appellant and two other soldiers met the victim at a servicemembers’ club. Her ser-vicemember husband had for all intents and purposes abandoned the five-month pregnant victim earlier in the evening. At closing time the victim accompanied the three soldiers back to the barracks where a party was purportedly taking place. No party was taking place in the barracks. In the barracks appellant and his friends continued drinking beer and gave the victim some snack cakes to eat. The victim testified that she was subsequently held down, forcibly undressed, and raped by the three soldiers. Appellant and the two co-defendants each had sexual intercourse with the victim at least , once during the course of conduct. The victim made a complaint and supporting sworn statement, and testified numerous times during the co-defendants’ separate Article 32, UCMJ, investigations (appellant waived his Article 32 investigation), and three separate trials. Appellant’s trial was the last trial in the series. During the course of appellant’s trial, the victim was successfully challenged numerous times concerning variations in her present and past testimonies and was likewise impeached concerning whether she had been to the barracks previously with one of the co-defendants, whether she yelled during the rape, and how much noise was being made in the room during the rape. DISCUSSION Having reviewed the evidence of record, the military judge’s extensive special findings, and recognizing the military judge’s unique opportunity to see and hear the witnesses, including both the victim and appellant, to weigh the evidence and to judge credibility-in making his findings, we find that the evidence is legally and factually sufficient to sustain the rape conviction. UCMJ art. 120; Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Turner, 25 M.J. at 325. Despite the numerous" }, { "docid": "7329797", "title": "", "text": "properly admitted because it showed more than the mere fact that the defendant was poor); United States v. Feldman, 788 F.2d 544 (9th Cir.1986) (evidence that the defendant owed substantial sums was relevant to show motive to commit a crime involving financial gain). Our superi- or court has also recognized that such evidence may prove motive and thus is admissible where evidence of financial difficulties was used to prove motive to commit larceny. United States v. Smith, 52 M.J. 337 (C.A.A.F.2000). The appellant’s financial circumstances were probative of his motive to commit the offense. We hold that the military judge did not abuse his discretion in admitting this evidence. TV. Sufficiency of the Evidence The appellant asserts that the evidence is both factually and legally insufficient to support his conviction. We disagree. The test for legal sufficiency is whether, considering the evidence in the light most favorable to the government, a rational trier of fact could have found the elements of the exime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Turner, 25 M.J. 324, 325 (C.M.A.1987); United States v. Reed, 54 M.J. 37 (C.A.A.F.2000); Article 66(c), UCMJ. Clearly, there was sufficient competent evidence in the record of trial for a rational trier of fact to have found the elements of the offense beyond a reasonable doubt. The test for factual sufficiency is whether, after weighing all the evidence in the record of trial and recognizing that we did not see or hear the witnesses, including the appellant, as did the trial court, we are convinced of the appellant’s guilt beyond a reasonable doubt. Reed, 54 M.J. at 41 (citing Turner, 25 M.J. at 325); Art. 66(c), UCMJ. Reasonable doubt, however, does not mean the evidence must be free from conflict. United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R.1986). “[T]he factfinders may believe one part of a witness’ testimony and disbelieve another.” United States v. Harris, 8 M.J. 52, 59 (C.M.A.1979). Applying this standard, we are convinced beyond a reasonable doubt of the appellant’s guilt. We" }, { "docid": "7471068", "title": "", "text": "307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). For factual sufficiency, the test is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the Court of Military Review are themselves convinced of the accused’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324-325 (C.M.A.1987). After many minutes of foreplay and vaginal intercourse in the “missionary” and related positions, the appellant turns his partner around so that she supports herself on her knees while the appellant enters her. But what part of her does he enter? If her vagina, he merely continues the adulterous affair with another act of “normal” sexual intercourse. If, however, he penetrates her anus, he violates Article 125. We are satisfied that the appellant entered his partner’s anus, rather than her vagina, and that the standards for legal and factual sufficiency have been met. MULTIPLICITY Appellant next asserts that the trial judge erred in failing, sua sponte, either to consolidate the sodomy charge with the adultery charge, or to dismiss one as multiplicious for sentencing. We need not dispose of that claim. The appellant waived this issue on appeal by failing to have asserted it at trial. United States v. Flynn, 28 M.J. 218 (C.M.A.1989). We specifically find, however, that, under the circumstances of this case, even if the sodomy charge were to be multiplicious for sentencing with the adultery offenses, the appellant was not prejudiced. THE RIGHT TO PRIVACY AND ARTICLE 125, UCMJ The Air Force Court of Military Review held in Fagg that the constitutional right of privacy extends to heterosexual, noncommercial, private acts of oral sex between consenting adults. United States v. Fagg, 33 M.J. at 619. In the view of that court at least, to the extent that Article 125 purports to include such acts within its prohibitive ambit, it is unconstitutional. The appellant asks us to so hold, too. We disagree; the balance of this opinion tells why. The existence of the right to privacy is incontrovertible. Griswold v. Connecticut, 381 U.S. 479," } ]

[ { "docid": "3113993", "title": "", "text": "942 (7th Cir. 1978). Our review of denial of motions under this rule is limited to determining if the district court abused its discretion. E. g., De Filippis v. United States, 567 F.2d 341 (7th Cir. 1977). Since Graves has offered no more than its assertions that it had meritorious defenses to the challenged judgments, the district court has not abused its discretion in denying Graves’s motion. Affirmed. Costs to appellee. . Prior to our disposition in Appleton, we affirmed summary judgment for shippers in eleven cases consolidated in this court on the ground that the judgment in Admiral-Merchants Motor Freight, Inc. v. United States, 321 F.Supp. 353 (D.Colo.) aff’d, 404 U.S. 802, 92 S.Ct. 51, 30 L.Ed.2d 37 (1971), was effective under the doctrines of res judicata and stare decisis as to carriers not parties thereto. Aluminum Co. of America v. Admiral Merchants Motor Freight, Inc., 486 F.2d 717 (7th Cir.), cert. denied, 414 U.S. 1113, 94 S.Ct. 843, 38 L.Ed.2d 739 (1973). Thus, the issue of liability has never been contested on appeal in the case at bar. . An order affirming the district court for the reasons stated from the bench was issued the following day. Appleton Electric Co. v. Graves Truck Line, Inc., 577 F.2d 746 (7th Cir. 1978). . Even though the prior decision of this court of April 18, 1978, was an unpublished order, because we have reconsidered the issues there presented, we have, pursuant to Circuit Rule 16(e), circulated this opinion among all judges of this court in regular active service. No judge favored a rehearing en banc on the matter of the reexamination of the issues. . The record does not disclose whether this service was in the manner prescribed by Rule 4, Fed.R.Civ.P. However, it is uncontested that Graves received a copy of the proposed order weeks before it was entered by the district court. Graves has not challenged the propriety of the mode of service of this order. This defense has been waived. See Rule 12(h), Fed. R.Civ.P." } ]

[ { "docid": "11942881", "title": "", "text": "95 (1996), an in banc case on the doctrine of equivalents then pending, whatever the holding might be. Hughes counters that Hughes VII is not in conflict with Pennwalt and that, in any event, this court should not revisit liability issues after these many years even if the law in the Hughes VII decision is wrong. In addition, Hughes argues that the government waived its right to reargue that its S/E satellites do not use the ’051 invention because the government did not argue below that the law had changed. Respecting Hilton Davis, Hughes argues that it would be manifestly unjust to apply retroactively any new test that might be adopted therein. III. Unlike res judicata, the law of the case does not involve preclusion after final judgment, but rather it regulates judicial affairs before final judgment. 18 Charles A. Weight, et al., Federal Practice and Procedure § 4478 (1981). A court will not generally revisit an issue once decided during the course of litigation. “Although courts are often eager to avoid reconsideration of questions once decided in the same proceeding, it is clear that all federal courts retain power to reconsider if they wish.” Id. As Justice Holmes stated, the law of the case doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). The Supreme Court has also explained that “there is a difference between [law of the case] and res judicata; one directs discretion, the other supersedes it and compels judgment.” Southern Ry. Co. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 127, 67 L.Ed. 283 (1922). See also Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). Thus, Hughes is correct that a court has some discretion under “law of the case” principles. However, the federal courts of ap peals have uniformly recognized that an intervening change in applicable law is a strong basis for reconsideration of a decided issue in a" }, { "docid": "21919442", "title": "", "text": "There are two distinct situations where the law of the case doctrine is applicable. First, a court ordinarily will not reconsider its own decision made at an earlier stage of the trial or on a prior appeal, absent clear and convincing reasons to reexamine the prior ruling. See, e.g., Appleton Electric Co. v. Graves Truck Line, Inc., 635 F.2d 603, 607-08 (7th Cir. 1980), cert. denied, 451 U.S. 976, 101 S.Ct. 2058, 68 L.Ed.2d 357 (1981). Second, an inferior court must apply the decision of a superior appellate tribunal on remand. See, e.g., James Burrough Ltd. v. Sign of the Beefeater, Inc., 572 F.2d 574, 577 (7th Cir. 1978). It is the second situation which is before us in this case. Welch contends that the trial court failed to properly apply the Supreme Court’s mandate, which, according to Welch, included the finding that, as a matter of law, the article was published without actual malice. The duty of the inferior courts to enforce the mandate of the Supreme Court is clear: “When a case has been once decided by [the Supreme Court] on appeal, and remanded to the Circuit Court, whatever was before this court, and disposed of by its decree, is considered as finally settled. The Circuit Court is bound by the decree as the law of the case; and must carry it into execution, according to the mandate Vendo v. Lektro-Vend Corp., 434 U.S. 425, 427-28, 98 S.Ct. 702, 703-704, 54 L.Ed.2d 659 (1978) (quoting In re Sanford Fork & Tool Co., 160 U.S. 247,255,16 S.Ct. 291, 293, 40 L.Ed. 414 (1895)). See also Ex parte Sibbald v. United States, 37 U.S. (12 Pet.) 487, 491, 9 L.Ed. 1167 (1838). It is equally clear, however, that “[w]hile a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues.” Sprague v. Ticonic National Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 780-781, 83 L.Ed. 1184 (1939). See also Banco Nacional de Cuba v. Farr, 383 F.2d 166, 179 (2d Cir. 1967), cert, denied, 390 U.S. 956, 88 5." }, { "docid": "22848809", "title": "", "text": "already determined that Astilleros was subject to the jurisdiction of the district court in Illinois, the doctrine of law of the case applies to this issue. “Ordinarily, matters decided on a prior appeal become the law of the case to be followed on a later appeal.” Parts and Electric Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228, 231 (7th Cir.1988), cert. denied, 493 U.S. 847, 110 S.Ct. 141, 107 L.Ed.2d 100 (1989). Astilleros’s arguments that the prior panel’s decision is not law of the case because it was an affirmance of an interlocutory decision of the district court and because the prior panel must have found only that there was a prima facie case of jurisdiction are not correct. It is well established that a decision of an interlocutory appeal may be the law of the case. See, e.g., Illinois ex rel. Burris v. Panhandle Eastern Pipe Line Co., 935 F.2d 1469, 1478-79 (7th Cir.1991); Citronelle-Mobile Gathering, Inc. v. Herrington, 826 F.2d 16, 23 (Em.App.1987), cert. denied, 484 U.S. 943, 108 S.Ct. 327, 98 L.Ed.2d 355 (1987); Erkins v. Bryan, 785 F.2d 1538, 1542 (11th Cir.1986), cert. denied, 479 U.S. 960 & 961, 107 S.Ct. 455, 93 L.Ed.2d 402 (1986); Appleton Electric Co. v. Graves Truck Line, Inc., 635 F.2d 603, 607 (7th Cir.1980), cert. denied, 451 U.S. 976, 101 S.Ct. 2058, 68 L.Ed.2d 357 (1981); United States v. Turtle Mountain Band of Chippewa Indians, 612 F.2d 517, 520-21, 222 Ct.Cl. 1 (1979). Also, the Fifth Circuit has held that decision of an interlocutory appeal in an admiralty case is law of the case. Todd Shipyards Corp. v. Auto Transportation, S.A., 763 F.2d 745, 750-51 (5th Cir.1985). There is no reason to refrain from treating a decision of an interlocutory appeal as law of the case when, as is very clear in this case, the issue necessarily addressed in the earlier decision is the same as the one we are asked to consider anew, and there was no clear error in the decision. The Supreme Court recently said, “ ‘when a court decides upon a rule of law, that" }, { "docid": "7690614", "title": "", "text": "unusual circumstances.” Geibel v. United States, 667 F.Supp. 215, 219 (W.D.Pa.1987), aff'd, 845 F.2d 1011 (3d Cir.1988). See also United States Gypsum v. Schiavo, 485 F.Supp. 46, 55 (E.D.Pa.1979), aff'd in part, rev in part, 668 F.2d 172 (3d Cir.1981), cert. denied, 456 U.S. 961, 102 S.Ct. 2038, 72 L.Ed.2d 485 (1982); United States v. Kikumura, 947 F.2d 72, 77 (3d Cir.1991) (“[U]nder the law of the case doctrine, when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.”) (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)); Devex Corp. v. General Motors Corp., 857 F.2d 197 (3d Cir.1988), cert. denied sub nom. Technograph Liquidating Trust v. General Motors Corp., 489 U.S. 1015, 109 S.Ct. 1128, 103 L.Ed.2d 190 (1989); Cowgill v. Raymark Indus., 832 F.2d 798 (3d Cir.1987); Harrington v. Lauer, 893 F.Supp. 352 (D.N.J.1995). Moreover, the Supreme Court has held that once an issue has been decided or “decided by necessary implication[,]” reconsideration of that issue is precluded. Christianson, 486 U.S. at 819, 108 S.Ct. at 2179. In other words, [a] court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice. Id. at 817, 108 S.Ct. at 2178. Naturally, this doctrine is not without exception. As the Supreme Court has held, while the “[l]aw of the case directs a court’s discretion, it does not limit the tribunal’s power.” Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983) (citing Southern R. Co. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 126-27, 67 L.Ed. 283 (1922); Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912)). The Third Circuit recognizes, for example, the following exceptions to the law of the case doctrine: when a" }, { "docid": "21919441", "title": "", "text": "once the privilege was established. The law of the case doctrine “is a rule of practice, based on sound policy that, when an issue is once litigated and decided, that should be the end of the matter.” Barrett v. Baylor, 457 F.2d 119, 123 (7th Cir. 1972) (citing United States v. United States Smelting, Refining & Mining Co., 339 U.S. 186, 198, 70 S.Ct. 537, 544, 94 L.Ed. 750 (1950)). The doctrine is a self-imposed prudential limitation rather than a recognition of a limitation of the courts’ power. IB Moore’s Federal Practice 10.404[10] at 573 (2d ed. 1980). It is not, therefore, an immutable rule, but rather a way to foreclose continued appeals for reconsideration of prior rulings of law. In this respect, the law of the case doctrine must be distinguished from res judicata : “[0]ne directs discretion; the other supersedes it and compels judgment.” Southern Railway Co. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126,127, 67 L.Ed. 283 (1922). Accord, Connett v. City of Jerseyville, 110 F.2d 1015, 1018 (7th Cir. 1940). There are two distinct situations where the law of the case doctrine is applicable. First, a court ordinarily will not reconsider its own decision made at an earlier stage of the trial or on a prior appeal, absent clear and convincing reasons to reexamine the prior ruling. See, e.g., Appleton Electric Co. v. Graves Truck Line, Inc., 635 F.2d 603, 607-08 (7th Cir. 1980), cert. denied, 451 U.S. 976, 101 S.Ct. 2058, 68 L.Ed.2d 357 (1981). Second, an inferior court must apply the decision of a superior appellate tribunal on remand. See, e.g., James Burrough Ltd. v. Sign of the Beefeater, Inc., 572 F.2d 574, 577 (7th Cir. 1978). It is the second situation which is before us in this case. Welch contends that the trial court failed to properly apply the Supreme Court’s mandate, which, according to Welch, included the finding that, as a matter of law, the article was published without actual malice. The duty of the inferior courts to enforce the mandate of the Supreme Court is clear: “When a case has" }, { "docid": "17396308", "title": "", "text": "court did hold that the City’s practice of delaying payment of tort judgments over $1,000 violated equal protection. This court has long held that “matters decided on appeal become the law of the case to be followed in all subsequent proceedings in the trial court and, on sec ond appeal, in the appellate court, unless there is plain error of law in the original decision.” Kaku Nagano v. Brownell, 212 F.2d 262, 263 (7th Cir.1954). The law of the case doctrine “is a rule of practice, based on sound policy that, when an issue is once litigated and decided, that should be the end of the matter.” Barrett v. Baylor, 457 F.2d 119, 123 (7th Cir.1972) (citing United States v. United States Smelting, Refining & Mining Co., 339 U.S. 186, 198, 70 S.Ct. 537, 544, 94 L.Ed. 750 (1950)). It is important to note that the law of the case doctrine does not limit this court’s power to reconsider earlier rulings in a case. The doctrine is a self-imposed prudential limitation rather than a recognition of a limitation of the courts’ power. IB Moore’s Federal Practice 110.404[10] at 573 (2d ed.1980). It is not, therefore, an immutable rule, but rather a way to foreclose continued appeals for reconsideration of prior rulings of law. In this respect, the law of the case doctrine must be distinguished from res judicata: ‘[0]ne directs discretion; the other supersedes it and compels judgment.’ Gertz v. Welch, 680 F.2d 527, 532 (7th Cir.1982), (quoting Southern Ry. Co. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 127, 67 L.Ed. 283 (1922)), cert. denied, 459 U.S. 1226, 103 S.Ct. 1233, 75 L.Ed.2d 467 (1983). This court has, on a limited number of occasions in subsequent appeals, reconsidered a previous decision in the same case and concluded that the former ruling was clearly erroneous. See, e.g. Devines v. Maier, 728 F.2d 876, 880 (7th Cir.) (intervening Supreme Court decision led to reversal of earlier decision), cert. denied, 469 U.S. 836, 105 S.Ct. 130, 83 L.Ed.2d 71 (1984); Appleton Elec. Co. v. Graves Truck Line, Inc., 635 F.2d 603," }, { "docid": "11942882", "title": "", "text": "once decided in the same proceeding, it is clear that all federal courts retain power to reconsider if they wish.” Id. As Justice Holmes stated, the law of the case doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). The Supreme Court has also explained that “there is a difference between [law of the case] and res judicata; one directs discretion, the other supersedes it and compels judgment.” Southern Ry. Co. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 127, 67 L.Ed. 283 (1922). See also Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). Thus, Hughes is correct that a court has some discretion under “law of the case” principles. However, the federal courts of ap peals have uniformly recognized that an intervening change in applicable law is a strong basis for reconsideration of a decided issue in a pending case. Dean v. Trans World Airlines, Inc., 924 F.2d 805, 810 (9th Cir.1991) (Supreme Court decision changed applicable law); Miles v. Kohli & Kaliher Associates, Ltd., 917 F.2d 235, 242 (6th Cir. 1990) (state Supreme Court decision changed applicable law in diversity case); Doe v. Anrig, 728 F.2d 30, 31 (1st Cir.1984) (decision by the same court of appeals changed applicable law); Wooster v. Handy, 21 F. 51, 53-54 (C.C.S.D.N.Y.1884) (decree of patent validity reconsidered after Supreme Court decisions relating to the validity of reissued patents). A. As an initial matter, Hughes’ argument is clearly untenable that the government has “waived” its right to argue for application of the current law at this stage of the proceedings. The government conceded only that, under our prior Hughes decision, certain additional S/E satellites could not be distinguished from the ones already found to be infringing. Nor could the government appropriately argue to the trial court that it did not have to follow the explicit mandate of this court during the course of the later damages phase" }, { "docid": "23521708", "title": "", "text": "plaintiffs’ part, were decided on appeal as a matter of law on the basis of the first trial’s record. The evidence at retrial was substantial and conflicting on these matters and, in the estimation of this court, raised issues of a type appropriate for jury disposition. “Significant Kansas law was recorded in the decision of Ritchie v. McGrath [1 Kan.App.2d 481], 571 P.2d 17 (1977), rendered subsequent to Delano v. Kiteh, supra, yet its impact was restricted at retrial by the specific law of this case as enunciated in the circuit court’s opinion. Delano v. Kitch, supra. “The court instructed the jury as it felt required to do in light of the mandate in this case, and if the verdicts rendered on retrial are appealed, the circuit court is invited to review whether the legitimate purview of the jury was to some extent preempted.” The trial court misunderstood the effect Delano I should have upon the issues before the court on remand. Normally, in conducting the retrial a trial court should follow rulings of law the appellate court previously made. However, the law of the case doctrine is not so rigid as the rule of res judicata, Southern Ry. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 127, 67 L.Ed. 283 (1922), and must yield to a controlling decision between the date of the first ruling and the retrial. In this diversity case Kansas substantive law applies. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In Chicago, Rock Island & Pac. R.R. v. Hugh Breeding, Inc., 247 F.2d 217 (10th Cir.), cert. dismissed, 355 U.S. 880, 78 S.Ct. 138, 2 L.Ed.2d 107 (1957), after a federal court decided an issue of Kansas substantive law, the Kansas Supreme Court made a contrary decision on the same issue. Under such circumstances, we said, “it is the duty of the Federal court that still has jurisdiction of the case to conform its decision and judgment to the latest decision of the supreme court of the state.” Id. at 223. In the absence of a state" }, { "docid": "8788798", "title": "", "text": "the L & R Defendants have substantively responded to the motion for reconsideration in both their Reply in Support of the Motion to Dismiss Plaintiffs’ First Amended Complaint (Dkt. # 126, pp. 4-6) and their Response to Plaintiffs’ Motion for Leave to File a Second Amended Complaint (Dkt. # 127, p. 8). . Fed.R.Civ.P. 60(b)(5) is inapplicable: (1) “changes in the law are insufficient to trigger Rule 60(b)(5), as the 'relation between the present judgment and the prior judgment must ... be closer than that of a later case relying on the precedent of an earlier case' (2) ”[b]ecause [Plaintiffs] failed to preserve their challenges to the adverse judgments, they could not subsequently move for relief under Rule 60(b)(5).” California Medical Ass'n v. Shalala, 207 F.3d 575, 578 (9th Cir.2000) (quoting Tomlin v. McDaniel, 865 F.2d 209, 211 (9th Cir.1989)) . \"The difference between the law of the case and res judicata is that 'one directs discretion, the other supersedes it and compels judgment.' \" United States v. Miller, 822 F.2d 828, 832 (9th Cir.1987) (quoting Southern Railway Company v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 67 L.Ed. 283 (1922)). . The Court is aware of the apparent conflict between the standards for departing from the law of the case doctrine and for granting relief under Fed.R.Civ.P. 60(b)(6). Compare Cuddy, 147 F.3d at 1114 (“[A] court may have discretion to depart from the law of the case if: 1) the first decision was clearly erroneous; 2) an intervening change in the law has occurred; ...\") with Agostini v. Felton, 521 U.S. 203, 239, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (\"Intervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6) ... ”); McKnight v. U.S. Steel Corp., 726 F.2d 333, 337 (7th Cir.1984) (\"Plaintiff may not, however, use Rule 60(b) to correct alleged errors of law by the district court which may have been raised by filing a timely appeal from the court's dismissal of plaintiff's complaint.''). The later applies more forcefully to actions in which judgment has been fully" }, { "docid": "23521709", "title": "", "text": "the appellate court previously made. However, the law of the case doctrine is not so rigid as the rule of res judicata, Southern Ry. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 127, 67 L.Ed. 283 (1922), and must yield to a controlling decision between the date of the first ruling and the retrial. In this diversity case Kansas substantive law applies. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In Chicago, Rock Island & Pac. R.R. v. Hugh Breeding, Inc., 247 F.2d 217 (10th Cir.), cert. dismissed, 355 U.S. 880, 78 S.Ct. 138, 2 L.Ed.2d 107 (1957), after a federal court decided an issue of Kansas substantive law, the Kansas Supreme Court made a contrary decision on the same issue. Under such circumstances, we said, “it is the duty of the Federal court that still has jurisdiction of the case to conform its decision and judgment to the latest decision of the supreme court of the state.” Id. at 223. In the absence of a state supreme court ruling, a federal court must follow an intermediate state court decision unless other authority convinces the federal court that the state supreme court would decide otherwise. E. g., West v. American Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940). Therefore, on retrial the court should have considered Ritchie’s application to this case. We may, indeed must, reassess Kansas law in light of Ritchie to determine whether, pursuant to our remand order in Delano I, the trial court gave erroneous instructions that prejudiced the defendants. II Kiteh contends that the control sales doctrine of Ritchie protected Brown; as representative of a group of Eagle-Beacon stockholders controlling a majority of the shares, Brown could arrange for the sale of the corporation’s controlling interest without breaching any fiduciary duty to minority shareholders. Kiteh then asserts that the doctrine protects him as well because he was acting as Brown’s agent. Moreover, Kiteh argues, not only did he breach no fiduciary duty to the plaintiff minority shareholders, but his activities" }, { "docid": "11621492", "title": "", "text": "to evade the mandate of the Seventh Circuit.” 735 F.Supp. 284, at 286. Weid-ner renews that attempt on appeal, arguing that our recommendation to the district court in Weidner I that it receive evidence from the state court trial judge in the form of an affidavit “violates the habeas corpus statute, is inconsistent with prior decisions of the Supreme Court, and ignores relevant psychological research findings.” Brief at 18. Respondents reply that we are precluded from considering Weidner’s challenges to the affidavit procedure by the doctrine of “law of the case.” Weidner recognizes that the doctrine of “law of the case” would ordinarily preclude our reconsideration of the affidavit procedure we recommended to the district court in our prior decision. Brief at 19; see Indianapolis Power & Light v. NLRB, 898 F.2d 524, 528 (7th Cir.1990); Parts & Elec. Motors v. Sterling Elec., 866 F.2d 228, 231 (7th Cir.1988), cert. denied, — U.S. -, 110 S.Ct. 141, 107 L.Ed.2d 100 (1989). Nevertheless, he contends that we are free to reconsider the affidavit procedure because this appeal falls within one or more exceptions to that doctrine. The first exception Weidner points us to is applicable where, on remand after the first appeal, new evidence has emerged that differs substantially from than that heard in the trial prior to the first appeal. Brief at 21; see Evans v. City of Chicago, 873 F.2d 1007, 1014 (7th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2560, 109 L.Ed.2d 742 (1990); Barrington Press v. Morey, 816 F.2d 341, 342-43 n. 2 (7th Cir.), cert. denied, 484 U.S. 906, 108 S.Ct. 249, 98 L.Ed.2d 207 (1987). The second exception Weidner seeks to have us apply comes into play when the prior appellate decision \"`was clearly erroneous and would work a substantial injustice.'\" Evans, 873 F.2d at 1015. A. The New Evidence Exception The doctrine of law of the case reflects the \"`sound policy that, when an issue is once litigated and decided, that should be the end of the matter.'\" Indianapolis Power & Light, 898 F.2d at 529 (quoting Evans, 873 F.2d at 1014); see" }, { "docid": "12532416", "title": "", "text": "two distinct situations. “First, a court ordinarily will not reconsider its own decision made at an earlier stage of the trial or on a prior appeal, absent clear and convincing reasons to reexamine the prior ruling. Second, an inferior court must apply the decision of a superior appellate tribunal on remand.” Gertz v. Robert Welch, Inc., 680 F.2d 527, 532 (7th Cir.1982) (citations omitted), cert. denied, 459 U.S. 1226, 103 S.Ct. 1233, 75 L.Ed.2d 467 (1983). Both situations were present in this case. In its oral decision rendered from the bench on March 30, 1987, the court explained that, in determining whether Burauer and McNamara were actual victims of discrimination, the court would apply the law of the ease, using the 1972 roster in the same fashion as it had in the past to determine which women the City should hire. Thus, the court was adhering to the same approach it had used earlier in the litigation. In addition, the district court believed that a decision of this court required it to use the 1972 roster. On February 2, 1976, the district court entered a final decree imposing mandatory hiring and promotion quotas to rectify the City’s past discrimination. The decree permitted, but did not require, the use of existing eligibility lists in hiring and promotion. 411 F.Supp. at 249. On appeal, this court found that Illinois law required the use of eligibility lists in the hiring and promotion of police officers. 549 F.2d 415, 425-26 (7th Cir.1977). Thus, we reversed the district court’s order to the extent that it did not affirmatively require that police officers be hired and promoted in rank order from eligibility lists compiled pursuant to Illinois law. Id. at 437-38. The district court read our opinion as requiring it to use the 1971 and 1972 rosters, rather than some other standard, for determining whether Burauer and McNamara would have been hired by the City. Burauer contends that the district court misread our earlier opinion. This court, in 1977, held that “the City must utilize the results of some examination given pursuant to Illinois law in" }, { "docid": "4113381", "title": "", "text": "the less controversial aspects of the doctrine of stare decisis. A fortiori it is bound by its judicial superiors’ ruling in the same case. Controversy over the doctrine of law of the case properly focuses on its invocation by a judge asked to change a previous ruling of his in a case, or by judges asked to change a previous ruling by a coordinate (as distinct from superior) court in a case. In these, the only interesting applications of the doctrine, it is a doctrine about reconsideration. That is how it normally is expressed. Here is a typical formulation: “a court will ordinarily not reconsider its own decision made at an earlier stage of the trial or on a prior appeal, absent clear and convincing reasons to reexamine the prior ruling.” Gertz v. Robert Welch, Inc., 680 F.2d 527, 532 (7th Cir.1982). It is important to give full weight to the word “decision.” No one thinks that if a trial judge overrules an objection to the admission of some piece of evidence, and a moment later the lawyer against whom he ruled asks him to reexamine his ruling, the judge may not do so unless he has “clear and convincing reasons.” No judge is so rigid. Judges are constantly reexamining their prior rulings in a case on the basis of new information or argument, or just fresh thoughts, without excogitating a “clear and convincing” reason for their change of heart. On the other hand, once a case has been decided, then, unless the decision was avowedly tentative (for example, a decision granting or denying a preliminary injunction or — our earlier example — a decision by a motions panel), there is a natural and healthy reluctance not to reconsider the decision unless powerful reasons are given for doing so. Otherwise parties would have an incentive constantly to pester judges with requests for reconsideration. But all this is to one side of our case. Burken is not asking us to reconsider a previous decision of ours in this litigation; we have not made a previous decision. We may assume that for" }, { "docid": "21919440", "title": "", "text": "of $100,000 and punitive damages of $300,000. It is from this judgment that Welch appeals. II Welch’s initial argument is, that the issue of actual malice was erroneously submitted to the jury in the second trial because the law of the case doctrine precluded the reliti-gation of that issue. Welch bases this argument on the first trial court’s finding, subsequently upheld by this court and the Supreme Court, that actual malice in publication of the article had not been ’proved. The issue of actual malice thus was fore closed from being a basis for either liability or punitive damages. Welch would then read the Supreme Court’s mandate remanding the case for a new trial as limited to the issues of whether liability existed and whether compensatory damages could be awarded predicated on a negligence theory. Because the trial court on remand determined that Welch was entitled to a conditional privilege which could only be overcome by a showing of actual malice, Welch argues that the trial court should have directed a verdict in its favor once the privilege was established. The law of the case doctrine “is a rule of practice, based on sound policy that, when an issue is once litigated and decided, that should be the end of the matter.” Barrett v. Baylor, 457 F.2d 119, 123 (7th Cir. 1972) (citing United States v. United States Smelting, Refining & Mining Co., 339 U.S. 186, 198, 70 S.Ct. 537, 544, 94 L.Ed. 750 (1950)). The doctrine is a self-imposed prudential limitation rather than a recognition of a limitation of the courts’ power. IB Moore’s Federal Practice 10.404[10] at 573 (2d ed. 1980). It is not, therefore, an immutable rule, but rather a way to foreclose continued appeals for reconsideration of prior rulings of law. In this respect, the law of the case doctrine must be distinguished from res judicata : “[0]ne directs discretion; the other supersedes it and compels judgment.” Southern Railway Co. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126,127, 67 L.Ed. 283 (1922). Accord, Connett v. City of Jerseyville, 110 F.2d 1015, 1018 (7th Cir. 1940)." }, { "docid": "17396309", "title": "", "text": "of a limitation of the courts’ power. IB Moore’s Federal Practice 110.404[10] at 573 (2d ed.1980). It is not, therefore, an immutable rule, but rather a way to foreclose continued appeals for reconsideration of prior rulings of law. In this respect, the law of the case doctrine must be distinguished from res judicata: ‘[0]ne directs discretion; the other supersedes it and compels judgment.’ Gertz v. Welch, 680 F.2d 527, 532 (7th Cir.1982), (quoting Southern Ry. Co. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 127, 67 L.Ed. 283 (1922)), cert. denied, 459 U.S. 1226, 103 S.Ct. 1233, 75 L.Ed.2d 467 (1983). This court has, on a limited number of occasions in subsequent appeals, reconsidered a previous decision in the same case and concluded that the former ruling was clearly erroneous. See, e.g. Devines v. Maier, 728 F.2d 876, 880 (7th Cir.) (intervening Supreme Court decision led to reversal of earlier decision), cert. denied, 469 U.S. 836, 105 S.Ct. 130, 83 L.Ed.2d 71 (1984); Appleton Elec. Co. v. Graves Truck Line, Inc., 635 F.2d 603, 608 (7th Cir.1980) (earlier pronouncement on jurisdiction was in error), cert. denied, 451 U.S. 976, 101 S.Ct. 2058, 68 L.Ed.2d 357 (1981); United States v. Habig, 474 F.2d 57 (7th Cir.) (earlier decision was erroneous), cert. denied, 411 U.S. 972, 93 S.Ct. 2145, 36 L.Ed.2d 695 (1973). Such a reconsideration should be avoided unless “one of three ‘exceptional circumstances’ exists: the evidence in a subsequent trial was substantially different; controlling authority has since made a contrary decision of law applicable to such issues; or the decision was clearly erroneous, and would work a substantial injustice.” Barrington Press, Inc. v. Morey, 816 F.2d 341, 342-43 n. 2 (7th Cir.1987) (quoting Kori Corp. v. Wilco Marsh Buggies & Draglines, Inc., 761 F.2d 649, 657 (Fed.Cir.1985)), cert. denied, 474 U.S. 902, 106 S.Ct. 230, 88 L.Ed.2d 229 (1985). See also Devines, 728 F.2d at 880. Applying these guidelines to this case, we note that there was indeed some new evidence at the second trial explaining why the City chose to prioritize judgments under $1,000. The record at the" }, { "docid": "17396310", "title": "", "text": "608 (7th Cir.1980) (earlier pronouncement on jurisdiction was in error), cert. denied, 451 U.S. 976, 101 S.Ct. 2058, 68 L.Ed.2d 357 (1981); United States v. Habig, 474 F.2d 57 (7th Cir.) (earlier decision was erroneous), cert. denied, 411 U.S. 972, 93 S.Ct. 2145, 36 L.Ed.2d 695 (1973). Such a reconsideration should be avoided unless “one of three ‘exceptional circumstances’ exists: the evidence in a subsequent trial was substantially different; controlling authority has since made a contrary decision of law applicable to such issues; or the decision was clearly erroneous, and would work a substantial injustice.” Barrington Press, Inc. v. Morey, 816 F.2d 341, 342-43 n. 2 (7th Cir.1987) (quoting Kori Corp. v. Wilco Marsh Buggies & Draglines, Inc., 761 F.2d 649, 657 (Fed.Cir.1985)), cert. denied, 474 U.S. 902, 106 S.Ct. 230, 88 L.Ed.2d 229 (1985). See also Devines, 728 F.2d at 880. Applying these guidelines to this case, we note that there was indeed some new evidence at the second trial explaining why the City chose to prioritize judgments under $1,000. The record at the first trial was sparse on the subject of the City’s reasoning for its practice. Plaintiffs chose to reopen the merits of this case in the second trial to establish a separate equal protection violation. This allowed the City to bring in more evidence explaining its conduct. While this new evidence alone may not compel reconsideration of our prior adjudication, this court is left with substantial doubt as to the correctness of that decision. By going beyond the remand for computation of damages and reopening and extending the equal protection analysis to a related situation, the underlying equal protection analysis was again exposed for reconsideration and review. “The law of the case does not demand obsequiousness right or wrong.” Champaign-Urbana News, Inc. v. J.L. Cummins, 632 F.2d 680, 683 (7th Cir.1980). We will therefore reconsider our prior determination in this matter to determine whether it may have been wrongly decided. B. Evans I Equal Protection Analysis The City’s actions are being challenged under 42 U.S.C. § 1983 and its alleged equal protection violations fall into two" }, { "docid": "2475473", "title": "", "text": "not control. 3. That concession, however, was built upon by this court in its first treatment of this case. We then said: As a result of the unlawful search, DEA agents obtained tangible evidence that was used as the basis for Miller’s arrest and for a warrant to seach his other luggage, and Miller was subsequently convicted of possession of cocaine with intent to distribute. The evidence obtained was thus probative of the crime for which Miller was charged. The fruits of the illegal search must therefore be suppressed. Miller I, 769 F.2d at 560 (citation omitted). Does Miller I, preclude reconsideration of the concession? The rule is that the mandate of an appeals court precludes the district court on remand from reconsidering matters which were either expressly or implicitly disposed of upon appeal. Nguyen v. United States, 792 F.2d 1500, 1502 (9th Cir.1986). Our statement in Miller I and the mandate constituted the law of the case. In the interest of finality, economy, and the prevention of repetitious litigation, the law of the case is normally decisive. But the law of the case does not have the same binding force as res judicata. As Justice Holmes succinctly put it: In the absence of statute the phrase, law of the case, as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). The difference between the law of the case and res judicata is that “one directs discretion, the other supersedes it and compels judgment.” Southern Ry. Co. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 126, 67 L.Ed. 283 (1922). We are dealing then with what is properly a matter of discretion — discretion so vague that the law of the case has been described by the Supreme Court as “an amorphous concept.” Arizona v. California, 460 U.S. 605, 618, 103 S.Ct." }, { "docid": "17854359", "title": "", "text": "and appealable or res ad-judicata on defendant’s survivorship defense. Furthermore, we seriously doubt if a ruling even though final can become res adjudicata so as to bar its further consideration in the course of the same proceeding. In Southern Railway Company v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 67 L.Ed. 283, the court, with reference to a prior ruling in the same case, stated: ■ “The prior ruling may have been followed as the law of the case, but there is a difference between such adherence and res judicata. One directs discretion; the other supersedes it and compels judgment. In other words, in one it is a question of power, in the other of submission.” In Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152, the court stated: “In the absence of statute the phrase, ‘law of th'e case,’ as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power. [Citing cases.]” Furthermore, it is the duty of federal courts at any stage in the course of a proceeding to give effect to state law. In Huddleston v. Dwyer, 322 U.S. 232, 236, 64 S.Ct. 1015, 1018, 88 L.Ed. 1246, the court quoted from its previous decision in Vandenbark v. Owens-Illinois Co., 311 U.S. 538, 543, 61 S.Ct. 347, 85 L.Ed. 327, as follows: “ ‘Until such time as a case is no longer sub judice, the duty rests upon federal courts to apply state law under the Rules of Decision statute in accordance with the then controlling decision of the highest state court.’ ” Under this pronouncement it appears plain that a District Court as well as this court is obligated to give effect to any change in state law made during the course of a proceeding, and we perceive no reason to doubt but that the obligation persists even though it requires further consideration of a question previously decided by" }, { "docid": "12532415", "title": "", "text": "that if more women had been hired during this period, they would have been hired from the 1972 roster in rank order and the rank order of the last woman hired would have been approximately double the total number of women hired. The court then determined that, absent discrimination, twenty-three percent of the patrolmen hired during the ■ relevant period should have been female. Using this percentage, the court found that those women who ranked 634 or better on the 1972 roster were actual victims of discrimination. Because Burauer ranked 1,115, she would have been too far down on the list to have been hired between 1972 and 1974. Therefore, the court concluded that she would have had to take the 1975 unisex patrol officer exam in any event, and thus is not an actual victim of discrimination. The district court believed that the law of the case required it to use the 1972 policewoman roster in determining whether Burauer would have been hired absent discrimination. Courts apply the law of the case doctrine in two distinct situations. “First, a court ordinarily will not reconsider its own decision made at an earlier stage of the trial or on a prior appeal, absent clear and convincing reasons to reexamine the prior ruling. Second, an inferior court must apply the decision of a superior appellate tribunal on remand.” Gertz v. Robert Welch, Inc., 680 F.2d 527, 532 (7th Cir.1982) (citations omitted), cert. denied, 459 U.S. 1226, 103 S.Ct. 1233, 75 L.Ed.2d 467 (1983). Both situations were present in this case. In its oral decision rendered from the bench on March 30, 1987, the court explained that, in determining whether Burauer and McNamara were actual victims of discrimination, the court would apply the law of the ease, using the 1972 roster in the same fashion as it had in the past to determine which women the City should hire. Thus, the court was adhering to the same approach it had used earlier in the litigation. In addition, the district court believed that a decision of this court required it to use the 1972" }, { "docid": "4088104", "title": "", "text": "the crime for which Miller was charged. The fruits of the illegal search must therefore be suppressed. Miller I, 769 F.2d at 560 (citation omitted). Does Miller I, preclude reconsideration of the concession? The rule is that the mandate of an appeals court precludes the district court on remand from reconsidering matters which were either expressly or implicitly disposed of upon appeal. Nguyen v. United States, 792 F.2d 1500, 1502 (9th Cir.1986). Our statement in Miller I and the mandate constituted the law of the case. In the interest of finality, economy, and the prevention of repetitious litigation, the law of the case is normally decisive. But the law of the case does not have the same binding force as res judicata. As Justice Holmes succinctly put it: In the absence of statute the phrase, law of the case, as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power. Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). The difference between the law of the case and res judicata is that “one directs discretion, the other supersedes it and compels judgment.” Southern Ry. Co. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 126, 67 L.Ed. 283 (1922). We are dealing then with what is properly a matter of discretion — discretion so vague that the law of the case has been described by the Supreme Court as “an amorphous concept.” Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). It is essentially “a rule of practice and not a limit on authority.” 1 B J. Moore, J. Lucas, & T. Currier, Moore’s Federal Practice § 0.404[1] at 120 (2d ed. 1982). Specifically, to correct “a manifest injustice” the law of the case should be reconsidered. Arizona v. California, 460 U.S. at 644, 103 S.Ct. at 1404 (Brennan, J., dissenting). Law of the case should not" } ]

[ { "docid": "14914671", "title": "", "text": "PARKER, District Judge. This case involves four claims comprising (1) RICO, (2) 42 U.S.C. § 1983, (3) conversion by extortion, and (4) Article 78, brought by Plaintiffs, real estate developers, against town officials and individuals in the Town of Delaware in Sullivan County, New York. Defendants have all made motions in connection with the RICO claim to either dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or for sum mary judgment pursuant to Fed.R.Civ.P. 56 PARTIES Plaintiff, Top of the World Estates, Inc. (“TOP”), is the owner and developer of approximately 1450 acres of land in the Town of Delaware which is located in Sullivan County, New York. Located on this property is a residential development known as “Top of the World”. Plaintiff, JOBO Associates, Inc. (“JOBO”), owns 250 acres adjoining the TOP property which is used as a sand and gravel bank. The individual Plaintiffs, Joseph DeFalco, Eleanor DeFalco, Robert Brown and Janice Brown are the principal officers, directors and shareholders of both TOP and JOBO. Defendant William Dirie was the elected Supervisor of the Town of Delaware from January 1986 to December 1991. In this position, Dirie served as a member of the Town Board and as a member of the Town Legislature. Defendant John Bernas is a contractor and owner of Defendant JML Quarries, Inc., (“JML”) and Defendant John Bernas, Inc. (“JBI”). Defendant V. Edward Curtis was appointed Chairman of the Delaware Planning Board from 1964 to December 1994. He is also engaged in the nursery and landscaping business. Defendant Alfred Steppich was the appointed Building Inspector of Delaware from 1986 to 1991. Defendant Richard Ferber was an elected Tax Assessor for the Town of Delaware from 1976 to 1994 and was Chairman of the Delaware Tax Assessors from 1990 to 1994. Defendant Donald Meckle was an elected Tax Assessor for the Town of Delaware from 1978 to 1993 and was Chairman of the Delaware Tax Assessors from 1979 to 1990. Defendant Paul Rouis was the appointed Sullivan County Administrator from 1977 to June 1993. Defendant Harry Fisher was at all relevant times an overseer of the Plaintiffs’ business operations." } ]

[ { "docid": "23091092", "title": "", "text": "& I MET WITH BILL ROSEN THIS AM [sic], I MUST CITE TOP OF WORLD SPECIFICALLY WITH VIOLATIONS. ALSO WE ARE NOT TO COMMUNICATE AT ALL WITH JOE DE-FALCO. ONLY IN WRITING — NOT PERSONALLY OR OVER PHONE.”). . Roger Wehr (“Wehr”), who was employed in the Sullivan County Department of Public Works and was ultimately appointed Commissioner of that Department on the recommendation of Paul Rouis, testified that Bernas received special treatment from the County. (T2:490-94). Wehr further testified that, when the County needed to select a site for a garbage transfer station, one of the sites selected for consideration was immediately adjacent to the Top of the World Development (T2:494-95), \"to get even with Joe DeFalco.” (T2:498-99). . See, e.g., Letter from Joe DeFalco to John Bernas dated Nov. 7, 1989 (E:360) (\"We would like to have a breakdown on how much of the gravel and fill was used for Top of The World and all records of sand that was given away to towns free-of-charge and what was sold on your computer. As per our discussion with Paul Rouis, we are hiring an engineer to determine what sand and gravel was taken out of the pit since you opened it. We also requested from him, what he feels was used for roads and fills at Top of The World Estates. I discussed this with Bobby Brown, Paul Rouis and the people that are interested in buying the pit. Everyone agrees that they would like to know what has come out of the pit so far.”). . DeFalco testified that Bernas gave him a handwritten note as his accounting of the gravel pit through 1989. (T2:171); see also Pl.’s Ex. 48 (E:163-69). Highway Superintendent Lahm testified that, according to Ber-nas, they did not need to keep records of the materials removed by the Town of Delaware from the JOBO gravel pit. (T2:528). . Lloyd Heller, successor to Dirie and Supervisor of the Town of Delaware from January 1992 to December 1993, testified that, after he became Supervisor, the Town Board of Assessment Review decided to reduce the taxes" }, { "docid": "23091097", "title": "", "text": "title in the name of Harry Fisher's son. The evidence presented indicated that the truck cost $20,251.91. . The Court also ordered that '\"DeFalco shall recover from defendant William Dirie the sum of $27,042.93 for legal fees and disbursements,” and that \"DeFalco shall recover from John Bernas, John Bernas, Inc. and JML Quarries, Inc. jointly and severally the sum of $228,079.08 for legal fees and disbursements.” See Final Judgment dated May 17, 1999 (JA:875). . Judge Brieant also ruled that, upon deposit of security in the total amount of $250,000 and the surrender of title to the JOBO stock in escrow, the final judgment would be stayed against all defendants pending appeal. In establishing a bonding requirement of about one-quarter of the total money judgment against the Bernas defendants, the Court stated that it was \"not prepared to say that the validity of the judgment on appeal is free from doubt. The presumptive viability of an appeal is always a point to be considered in granting a stay pending appeal, and here weighs in favor of granting a stay.\" See Memorandum and Order dated May 17, 1999 (Brieant, J.) (JA:882-83). . The Bernas defendants do not argue this point and concede that \"Judge Parker properly held prior to trial that a governmental unit or municipal subdivision qualifies as an 'enterprise' within the meaning of RICO, 18 U.S.C. § 1961(4).” See Brief of Defendants Appellants John Bernas, John Bernas, Inc. and JML Quarries, Inc. at 37-38 (citing De Falco v. Dirie, 923 F.Supp. 473, 477 (S.D.N.Y.1996) (\"The Town of Delaware falls within the enterprise definition and Defendants do not dispute this.”)). . As noted in section 11(A) above, Steppich wrote in his personal log: \"Called Kathy at Top of the World. Told her no more building permits to be issued until I got an okay from Bill Dirie and Ed Curtis.” (T2:338-39). . As noted in Section 11(A) above, Roger Wehr, who was employed in the Sullivan County Department of Public Works and was ultimately appointed Commissioner of that Department, also testified that Bernas received special treatment from the County. (T2:490-94)." }, { "docid": "23091096", "title": "", "text": "Court further found that Ferber had made some handwritten \" 'red ink’ changes to the tentative [tax] assessment roll after May 1, 1991, without following the procedure set forth in RPTL 552, despite having been informed that it was improper to do so.” Id. (citation omitted). The Court found that, in a \"flagrant abuse of ... power,” \"Ferber and Diehl engaged in inexcusable self-dealing, by deliberately adjusting ... preliminary values ... so that their own properties, and those of their friends and relatives, were ultimately assessed well below market value, while the properties in petitioner's development were assessed at a level that was undeniably above market value.” Id. The Court also decried \"several meetings of the Town Board that were held in private, without notice, and for which no minutes were kept.” Id. The Court therefore ordered that Diehl, Doetsch and Ferber be removed from office. Id. at 4, PL's Ex. 78 at E.-201; see also (T2:627-31). . As noted above, Dirie suggested that DéFal-eo buy a new pickup truck for Fisher and place the title in the name of Harry Fisher's son. The evidence presented indicated that the truck cost $20,251.91. . The Court also ordered that '\"DeFalco shall recover from defendant William Dirie the sum of $27,042.93 for legal fees and disbursements,” and that \"DeFalco shall recover from John Bernas, John Bernas, Inc. and JML Quarries, Inc. jointly and severally the sum of $228,079.08 for legal fees and disbursements.” See Final Judgment dated May 17, 1999 (JA:875). . Judge Brieant also ruled that, upon deposit of security in the total amount of $250,000 and the surrender of title to the JOBO stock in escrow, the final judgment would be stayed against all defendants pending appeal. In establishing a bonding requirement of about one-quarter of the total money judgment against the Bernas defendants, the Court stated that it was \"not prepared to say that the validity of the judgment on appeal is free from doubt. The presumptive viability of an appeal is always a point to be considered in granting a stay pending appeal, and here weighs in favor" }, { "docid": "23091091", "title": "", "text": "hearing, which will have a great bearing on the next step in your project. As I understand it, you have engaged some excellent professional people.... I think if they do their homework, they will be able to satisfy the concerns of the various parties at the public hearing. It will be our job, to decide if the concerns of the public have been resolved, or that further work will have to be done.”). . Sleppich’s personal log contained several other references to issues regarding DeFalco and Top of the World. See, e.g., (E:81) (“SAW ED CURTIS; DISCUSSED TOP OF WORLD — NO MORE PERMITS.”); (E:82) (\"MEETING WITH ED CURTIS ABOUT SITUATION AT TOP OF WORLD. WILL WAIT FOR ROSEN'S ADVICE ABOUT FURTHER ACTION.”); (E:83) (\"MEETING IN LIBERTY OFFICES OF LEON GREENBERG ABOUT JOE DEFALCO — IN ATTENDANCE WERE LEON GREENBERG, BILL ROSEN, JOE DEFALCO, TERRANCE KELLY, ED CURTIS, AN ASSOC OF KELLY & MYSELF.... MR GREENBERG I HOPE FINALLY GOT IT THRU DEFALCO THAT HE NEEDS THE PERMIT BEFORE PROCEEDING, NOT AFTER.”); (E:86) (\"BILL DIRIE & I MET WITH BILL ROSEN THIS AM [sic], I MUST CITE TOP OF WORLD SPECIFICALLY WITH VIOLATIONS. ALSO WE ARE NOT TO COMMUNICATE AT ALL WITH JOE DE-FALCO. ONLY IN WRITING — NOT PERSONALLY OR OVER PHONE.”). . Roger Wehr (“Wehr”), who was employed in the Sullivan County Department of Public Works and was ultimately appointed Commissioner of that Department on the recommendation of Paul Rouis, testified that Bernas received special treatment from the County. (T2:490-94). Wehr further testified that, when the County needed to select a site for a garbage transfer station, one of the sites selected for consideration was immediately adjacent to the Top of the World Development (T2:494-95), \"to get even with Joe DeFalco.” (T2:498-99). . See, e.g., Letter from Joe DeFalco to John Bernas dated Nov. 7, 1989 (E:360) (\"We would like to have a breakdown on how much of the gravel and fill was used for Top of The World and all records of sand that was given away to towns free-of-charge and what was sold on your computer." }, { "docid": "23090984", "title": "", "text": "this matter over with.” (T2:201). DeFalco ultimately transferred the one-third interest in the JOBO stock to JBI on December 6, 1989. See Pl.’s Ex. 60, Stock Transfer Agreement dated Dec. 6, 1989 (E:181); PL’s Ex. B31, JOBO Stock Certificate for John Ber-nas, Inc. (E:361). The Phase I roads were thereafter accepted for dedication by the Town. (T2:206); see also Letter from Robert M. Rosen to William Dirie dated Dec. 7,1989 (E:179). After DeFalco signed over the one-third interest in JOBO to Bernas, however, Ber-nas wanted rights to the entire gravel pit, and suddenly the dedication of the Phase I roads was again called into question. (T2:206). At the same time, DeFalco remained concerned with the accountings Bernas had prepared for the gravel pit and instructed Bernas not to mine the JOBO site after December 15, 1989. (T2:208). In March 1990, on DeFalco’s return from a seasonal trip to Florida, however, he found Bernas’ people working to remove material from the JOBO site. (T2:207). DeFalco again directed Bernas to stop work at JOBO and erected physical barriers there. (T2:208 — 12); see also “Cease and Desist Order” Letter from Joe DeFalco to John Bernas, Inc. and JML Quarries dated Mar. 2, 1990 (E:182). On March 15, 1990, De-Falco wrote to Bernas: “I feel that I am always being harassed over this gravel pit. I have no intentions of backing down anymore.” (T2:212); see also Letter from Joe DeFalco to John Bernas, Inc. and JML Quarries dated Mar. 5, 1990 (E:183-84). DeFalco faced mounting pressure from several of the defendants to give Bernas the entire gravel pit. For example, Ber-nas told DeFalco that, if DeFalco did not turn over the gravel pit, “(t)hey were going to close the development down.” (T2:214). When DeFalco resisted giving Bernas the,entire gravel pit, Tax Assessors Ferber and Meckle reassessed certain lots from $20,000 to $45,000 a piece, more than doubling plaintiffs’ taxes. (T2:253). On or about April 2, 1990, the Town of Delaware Planning Board issued a letter listing certain requirements to be completed before final approval would be granted for Phase II. The Planning Board" }, { "docid": "23091037", "title": "", "text": "Bernas defendants argue that the evidence does not demonstrate extortion of the one-third JOBO stock interest: “Extortion, as defined in the Hobbs Act, consists of the use of wrongful means to achieve a wrongful objective,” and “[t]he use of economic fear as leverage to drive a hard bargain in an ordinary commercial relationship will not support a RICO claim based on extortion.” Brief of Defendants-Appellants John Bernas, John Bernas, Inc. and JML Quarries, Inc. at 21. They argue that a threat to cause economic loss is wrongful only when it is used to obtain property to which one is not entitled. The Bernas defendants claim that the District Court erred by failing to instruct the jury that, before it could find wrongful use of actual or threatened fear of economic loss, it had to find that the Bernas defendants had no lawful right to the JOBO stock. They argue that DeFalco and Bernas never had a binding agreement providing for the number of miles of roads Bernas had to build in order to obtain the transfer of the JOBO stock. They also argue that DeFalco later accepted a proposal by Bernas that he would finish the Phase I roads and do the Phase 2 roads for a flat fee of $40,000, in return for the plaintiffs’ transfer of the one-third stock interest in JOBO. See Brief of Defendants Appellants John Bernas, John Bernas, Inc. and JML Quarries, Inc. at 23-24 (citing (E:354); (T2:297)); see also (E:356). The Bernas defendants argue that, according to DeFalco’s own testimony, this offer induced DeFalco to agree to give the stock to Bernas. See id. (citing (T2:175, 294-97)). The Bernas defendants therefore argue that they had a legal right to the JOBO stock and that the court erred by failing to instruct the jury that it had to find that the Bernas defendants had no lawful right to the JOBO stock before it could find wrongful use of actual or threatened fear of economic loss. The trial court’s instruction with respect to extortion as a RICO predicate act was as follows: Extortion is a separate" }, { "docid": "23090980", "title": "", "text": "stop issuing building permits, Steppich wrote in his personal log: “Called Kathy at Top of the World. Told her no more budding permits to be issued until I got an okay from Bill Dirie and Ed Curtis.” (T2:338-39). As the project progressed, DeFalco complied with other demands made by the defendants. For example, DeFalco gave a set of used truck wheels and tires to Dirie’s son, as demanded by Dirie (T2:152-53). During the course of Bernas’ work on the roads, the Town of Delaware removed gravel from the plaintiffs’ gravel pit free of charge. (T2:162-63). When DeFalco questioned Bernas’ giving free sand and gravel to the Town of Delaware, DeFalco suddenly faced problems with a previously agreed deal regarding plowing and maintenance of the development roads by the Town as well as threats that the Phase I roads either would not be accepted for dedication by the Town or that the dedication process would be delayed. (T2:165-66); see also (E:287-88). In mid-1989, before Phase I was complete, DeFalco approached Bernas about beginning work on the roads for Phase II. Both Bernas and DeFalco, however, wanted to address certain outstanding issues. DeFalco wanted Bernas to give him a detailed breakdown of what materials he had removed, sold or given away from the gravel pit. Bernas wanted resolution of the then outstanding issue of when he would receive the one-third equity interest in JOBO. Over the course of the project, Bernas had been extracting gravel from the JOBO site. Pursuant to the agreement with plaintiffs, Bernas was to provide plaintiffs with accountings of the gravel and other materials removed from the pit. After repeated requests from DeFalco and Brown, Bernas rendered the accountings of materials sold from the JOBO site. See (E:163-71). DeFalco became skeptical of the accuracy of the accountings and insisted that Bernas both refrain from giving away any materials free-of-charge and that he share the profits of any sales with the plaintiffs. Whenever DeFalco broached the topic with Bernas, however, Bernas threatened to get the Town to either stop the project or refuse dedication of the development’s roads. Under" }, { "docid": "23091056", "title": "", "text": "at least three years from September 1987 through May 1990. Then-only record citation for this proposition, however, is the handwritten note that Ber-nas gave DeFalco as his accounting of the gravel pit through 1989. See Brief of Plaintiffs-Appellees-Cross-Appellants at 31 n. 23 (“The Bernas Defendants extortion of sand and gravel occurred multiple times over a long period of time.”) (citing (E:163-65)). We are not persuaded that these three pages, which purport to be the yards of sand and gravel Bernas billed from January to June 1989, establish extortion of sand and gravel from September 1987 through May 1990 as plaintiffs claim. Even assuming that the Bernas defendants were taking gravel from the site and not using it on the developments’ roads or sharing the profits from any third-party sales, the earliest threat that we can find by Bernas to stop the project if the Bernas defendants were not allowed to continue to remove sand and gravel from the pit is December 1988. See (T2:165-66); see also Letter from John Bernas to Robert M. Rosen dated Dec. 9, 1988, with courtesy copies to William Dirie and Joseph DeFal- co (E:288). Bernas’ December 1988 letter is well past the September 1987 point at which the plaintiffs allege the extortion began. The plaintiffs point to only one other extortionate act by the Bernas defendants with respect to the sand and gravel, namely, when the plaintiffs told the Bernas defendants to “cease and desist” from removing any additional gravel and “Bernas refused to do so, threatening adverse political action from members of the enterprise if plaintiffs tried to force him to do so .... ” Brief of Plaintiffs-Appellees-Cross-Appellants at 37-38. The record reveals, however, that DeFaleo did not instruct the Bernas defendants to refrain from removing additional gravel until December 15, 1989. (T2:207). When DeFaleo returned to New York in March 1990 from Florida and found Bernas’ people working on the JOBO site, DeFaleo again directed Bernas to stop work at JOBO and erected physical barriers there. (T2:208 — 12); see also “Cease and Desist Order” Letter from Joe DeFaleo to John Bernas, Inc." }, { "docid": "23090983", "title": "", "text": "yet.’ ” (T2:181-82). With respect to the financial statement, DeFalco testified that Rouis “was going to take care of it when the stock was signed over.” (T2:182). Similarly, Dirie threatened adverse official action if DeFalco failed to give Bernas the stock. (T2:178). DeFalco testified thát “Dirie told me straight up and down, ‘you can kiss Phase 2 good-bye, the development good-bye.’” (T2:178). The sudden issues regarding plowing and maintenance of the development’s roads and whether the roads would be accepted for dedication by the Town were also tied to transfer of the JOBO stock. According to DeFalco, with Dirie, “it was always the same story. ‘If you sign over the stock, the problems go away.’ ” (T2:197). Delaware Town Engineer Terry Kelly, Tax Assessor Ferber, Tax Assessor Meckle and Building Inspector Steppich each pressured DeFalco to turn the stock over to Bernas. (T2:183). On several occasions, Dirie and Bernas indicated that, if DeFalco didn’t sign over the stock, the project would be scrapped. (T2:202). DeFalco testified: “I didn’t have a choice. I wanted to get this matter over with.” (T2:201). DeFalco ultimately transferred the one-third interest in the JOBO stock to JBI on December 6, 1989. See Pl.’s Ex. 60, Stock Transfer Agreement dated Dec. 6, 1989 (E:181); PL’s Ex. B31, JOBO Stock Certificate for John Ber-nas, Inc. (E:361). The Phase I roads were thereafter accepted for dedication by the Town. (T2:206); see also Letter from Robert M. Rosen to William Dirie dated Dec. 7,1989 (E:179). After DeFalco signed over the one-third interest in JOBO to Bernas, however, Ber-nas wanted rights to the entire gravel pit, and suddenly the dedication of the Phase I roads was again called into question. (T2:206). At the same time, DeFalco remained concerned with the accountings Bernas had prepared for the gravel pit and instructed Bernas not to mine the JOBO site after December 15, 1989. (T2:208). In March 1990, on DeFalco’s return from a seasonal trip to Florida, however, he found Bernas’ people working to remove material from the JOBO site. (T2:207). DeFalco again directed Bernas to stop work at JOBO and erected physical" }, { "docid": "23091071", "title": "", "text": "Invoice dated July 28, 1987 from Robert Chevrolet, Inc. (E:7) (“Total: 20251.94”). Similarly, with respect to the jury’s award of $12,300 for timber and/or firewood extorted for the benefit of Ray Ferber, DeFalco testified that, following the defendants’ suggestions, he permitted Dirie, Fisher and others to cut timber and firewood on the property. When DeFalco granted a logging contract for a certain section of the property to the Walczak Lumber Company for a price of $8800, see (E:129 — 30), Dirie insisted that DeFalco cancel the contract and return the check. When DeFalco protested, Dirie told him “Don’t expect to get your approvals at the Planning Board meeting unless it’s done.” (T2:126). DeFalco was further instructed by Tax Assessor Richard Ferber to use his cousin, Ray Ferber, for the logging contract, “[ojtherwise [he was] never going to get approvals.” (T2:128). DeFalco returned the check and paid an $880 penalty for canceling the contract. (T2:128); (E:132). DeFalco also testified that Ferber started cutting trees in other sections and did not pay him for those trees. (T2:131). Paul Kowalczyk, a consulting forester, testified that the value of the timber that was on the right of way and adjoining lands in the second section was around $2800. (T2:417). There was also evidence from which the jury could reach the damages awarded against the Bernas defendants. The documentary evidence before the jury included, for example: (1) the schedule prepared by Bernas to account for the quantity of sand and gravel removed by him from the JOBO gravel pit for the six-month period of January though June of 1989 (E:163-65); (2) the schedule of additional sales of materials by- Bernas entitled “John Bernas Printout as of July 20, 1988,” (E:166-69); and (3) the letter from Town Engineer Kelly (E:186), which reflected a $70,000 cost for placing an additional four inches of gravel on the roads at Phase II. In addition, the jury heard testimony supporting the damages awarded against the Bernas defendants. For example, John Fink (“Fink”) who, at the relevant times, worked for the Sullivan County Division of Solid Waste and also owned property" }, { "docid": "23090975", "title": "", "text": "sporting goods store and hired Bernas to construct the roads at the development. DeFaleo also visited nursery owner and Planning Board Chairman Curtis. Curtis indicated that “things [would] go a lot easier” if DeFaleo were to use a particular landscaping contractor, Ed Matern, who would purchase plants and shrubs from Curtis’ nursery. (T2:74). Later, Curtis also suggested that DeFaleo hire a particular contractor, Jim Glavin, to design the entrance to the development, indicating that DeFaleo should “do it the right way and bring in Galvin [sic]. And if you use these people, everything is going to go smoother.” (T2:82). Plaintiffs intended the TOP development to proceed in four phases. Before Phase I commenced, in August 1987, DeFalco and Bernas met to discuss road construction for the development. Although no written contract was executed, DeFalco and Ber-nas agreed that Bernas’ company John Bernas, Inc. (“JBI”) would construct roads at TOP in exchange for the cost of labor plus a one-third stock interest in JOBO. Bernas was to extract gravel from the JOBO site to use in building the roads at TOP and was additionally entitled to sell any excess sand and gravel removed from JOBO, with any profits from such sales split 50-50 between Bernas and the plaintiffs. As the project progressed, the defendants made additional demands on DeFal-co coupled with a threat of adverse official action on the project. For example, Dirie suggested that DeFalco let Dirie’s son cut timber on the property. When DeFalco resisted and indicated that he intended to bring in a logger to cut timber for himself, Dirie responded, “If you want to go by the Planning Board and you want things to go smooth, you know, this is the way it is in Sullivan County. That’s it.” (T2:97). DeFalco also complied with the defendants’ suggestions to hire particular individuals. At an October 2, 1987 meeting between DeFalco, Brown, Bernas and Sullivan County Administrator, Paul Rouis (“Rouis”), Rouis pulled DeFalco aside and insisted that he be the accountant for the development project and that DeFalco hire a local attorney named Robert Rosen. (T2:113 — 14). Rouis" }, { "docid": "23091098", "title": "", "text": "of granting a stay.\" See Memorandum and Order dated May 17, 1999 (Brieant, J.) (JA:882-83). . The Bernas defendants do not argue this point and concede that \"Judge Parker properly held prior to trial that a governmental unit or municipal subdivision qualifies as an 'enterprise' within the meaning of RICO, 18 U.S.C. § 1961(4).” See Brief of Defendants Appellants John Bernas, John Bernas, Inc. and JML Quarries, Inc. at 37-38 (citing De Falco v. Dirie, 923 F.Supp. 473, 477 (S.D.N.Y.1996) (\"The Town of Delaware falls within the enterprise definition and Defendants do not dispute this.”)). . As noted in section 11(A) above, Steppich wrote in his personal log: \"Called Kathy at Top of the World. Told her no more building permits to be issued until I got an okay from Bill Dirie and Ed Curtis.” (T2:338-39). . As noted in Section 11(A) above, Roger Wehr, who was employed in the Sullivan County Department of Public Works and was ultimately appointed Commissioner of that Department, also testified that Bernas received special treatment from the County. (T2:490-94). . See also (T2:226-27) (“Q: Was John Ber-nas's approval necessary for the completion of Phase 2, to your knowledge, Mr. DeFalco? A: John Bernas is not an official, but I said it a hundred times, they controlled each other.\"); Letter from Joe DeFalco to John Ber-nas, Inc. dated May 8, 1990 (“You have proved your point, that John Bernas, Inc. has a lot of influence and control over the Town of Delaware.”). . Although the thrust of Bernas' argument regarding the Reves operation or management test is that the plaintiffs failed to establish that the Bernas defendants operated or managed the Town of Delaware, Bernas makes passing reference that it was “plain error to instruct the jury that it could find the requisite control by the Bernas Defendants over the Town of Delaware based merely on evidence of 'friendships.' “ See Brief of Defendants Appellants John Bernas, John Bernas, Inc. and JML Quarries, Inc. at 43. The Bernas defendants put forth no objection to the charge. See Fed.R.Civ.P. 51 (“[n]o party may assign as error" }, { "docid": "23090979", "title": "", "text": "following day, Dirie visited De-Falco at the development and asked whether he “got the message.” (T2:127). DeFalco returned the check and paid a penalty for canceling the contract. (T2:128). DeFalco was further instructed by Tax Assessor Richard Ferber to use his cousin, Ray Ferber, for the logging contract; “[ojtherwise [he was] never going to get approvals.” (T2:128). At the n'ext Planning Board meeting on November 18, 1987, the project was once again allowed to move forward. (T2:130); see also PL’s Ex. 26, Nov. 18, 1987 Planning Board Minutes (E:135-37). Similarly, when DeFalco attempted to fire Fisher and his crew, Rosen warned him against “rocking the cradle,” Dirie told him that he would “scrap the project,” and Rouis stated that DeFalco was “going to have major problems.” (T2:132). Former Town of Delaware Building Inspector Alfred Steppich (“Steppich”) also testified that both Supervisor Dirie and Planning Board Chairman Curtis instructed him at one point to stop issuing building permits for Top of the World. (T2:335). Notwithstanding that neither Dirie nor Curtis was authorized to tell Steppich to stop issuing building permits, Steppich wrote in his personal log: “Called Kathy at Top of the World. Told her no more budding permits to be issued until I got an okay from Bill Dirie and Ed Curtis.” (T2:338-39). As the project progressed, DeFalco complied with other demands made by the defendants. For example, DeFalco gave a set of used truck wheels and tires to Dirie’s son, as demanded by Dirie (T2:152-53). During the course of Bernas’ work on the roads, the Town of Delaware removed gravel from the plaintiffs’ gravel pit free of charge. (T2:162-63). When DeFalco questioned Bernas’ giving free sand and gravel to the Town of Delaware, DeFalco suddenly faced problems with a previously agreed deal regarding plowing and maintenance of the development roads by the Town as well as threats that the Phase I roads either would not be accepted for dedication by the Town or that the dedication process would be delayed. (T2:165-66); see also (E:287-88). In mid-1989, before Phase I was complete, DeFalco approached Bernas about beginning work on the" }, { "docid": "23091024", "title": "", "text": "Assessor Ferber, Tax Assessor Meckle and Building Inspector Steppich each pressured DeFalco to turn the stock over to Bernas. (T2:183). Once DeFalco transferred the stock to Bernas, the Phase I roads were immediately accepted for dedication by the Town. (T2:206). After DeFalco signed over the one-third interest in JOBO, however, Bernas wanted rights to the entire gravel pit and the dedication of the Phase I roads was called into question again. (T2:206). Bernas told DeFalco that, if he did not turn the gravel pit over to him, “[t]hey were going to close the development down.” (T2:214). When DeFalco resisted giving Bernas the entire gravel pit, Tax Assessors Ferber and Meckle reassessed certain lots from $20,000 to $45,000 a piece, more than doubling plaintiffs’ taxes. (T2:253). When DeFalco asked Dirie how he could get Phase II approved in light of the April 2, 1990 letter from the Town of Delaware Planning Board listing certain uncompleted requirements, Dirie replied, “Give Ber-nas the gravel pit.” (T2:225). Perhaps the most striking evidence that Bernas influenced the affairs of the Town, however, was set forth in the Sullivan County Board of Supervisors Letter from Delaware Supervisor William Dirie to Joe DeFalco dated March 30, 1990, in which Dirie wrote: “As we have previously discussed, there are several ways that you can complete the work on Phase II. I am confident that we can reach an agreement with the approval of John Bernas, that will meet all our needs.” See Sullivan County Board of Supervisors Letter from Delaware Supervisor William Dirie to Joe De-Falco dated Mar. 30, 1990 (E:189-90; E:315-16) (emphasis added). That letter — stating in effect that completion of Phase II of the plaintiffs’ development was subject to Bernas’ approval — is strong evidence from which a jury could conclude that Bernas participated in the operation or management of the Town of Delaware. In short, there was ample evidence from which a reasonable jury could conclude that Bernas participated in the operation or management of the Town of Delaware, had at least some part in directing the affairs of the Town and, indeed, exerted" }, { "docid": "23091036", "title": "", "text": "of the JOBO stock. In short, there was sufficient evidence of fear of economic loss with respect to all five predicate acts ’charged against Dirie for a reasonable jury to conclude that DeFalco believed that Dirie had the power to harm him, and that Dirie would exploit that power to the plaintiffs’ detriment. b. The Bernas Defendants The Bernas defendants also argue that the plaintiffs failed to establish the commission of at least two predicate acts of racketeering against them. The plaintiffs charged the Bernas defendants with three predicate acts: (1) extortion of the construction contract to build the development’s roads; (2) extortion of one-third of the JOBO stock; and (8) extortion of sand and gravel from the JOBO pit. The jury found that none of the Bernas defendants “[e]xtorted from plaintiffs a construction contract to build Top of the World Phase I roads;” but that they “[e]xtorted from plaintiffs one-third of the shares of JOBO;” and “[e]xtorted from plaintiffs sand and/or gravel from the JOBO gravel pit.” (JA:630-31); (T2:120102). i. The JOBO Stock The Bernas defendants argue that the evidence does not demonstrate extortion of the one-third JOBO stock interest: “Extortion, as defined in the Hobbs Act, consists of the use of wrongful means to achieve a wrongful objective,” and “[t]he use of economic fear as leverage to drive a hard bargain in an ordinary commercial relationship will not support a RICO claim based on extortion.” Brief of Defendants-Appellants John Bernas, John Bernas, Inc. and JML Quarries, Inc. at 21. They argue that a threat to cause economic loss is wrongful only when it is used to obtain property to which one is not entitled. The Bernas defendants claim that the District Court erred by failing to instruct the jury that, before it could find wrongful use of actual or threatened fear of economic loss, it had to find that the Bernas defendants had no lawful right to the JOBO stock. They argue that DeFalco and Bernas never had a binding agreement providing for the number of miles of roads Bernas had to build in order to obtain the" }, { "docid": "23091102", "title": "", "text": "from plaintiffs one-third of the shares of JOBO Associates, Inc., for the benefit of John Bernas, Inc.;” and (5) \"[ejx-torted from plaintiffs truck wheels and tires for the benefit of William Dirie's son.” See Special Verdict Form, Question 4 at 2 (JA:630); (T2:1201). . The five racketeering acts charged against Dirie in the complaint were set forth as violating the Hobbs Act and certain New York extortion and penal statutes. See, e.g., Brief of Defendant Cross Defendant Appellant Cross Appellee William Dirie at 13. . The jury, answering special interrogatories, was asked to determine whether John Bernas and John Bernas, Inc. had \"[e]xtorted from plaintiffs a construction contract to build Top of the World Phase I roads;” \"[e]x-torted from plaintiffs one-third of the shares of JOBO Associates, Inc.;” and \"[e]xtorted from plaintiffs sand and/or gravel from the JOBO gravel pit.” (JA:630-31); (T2:1201-02). As to defendant JML Quarries, Inc., however, the jury was only asked whether JML had \"extorted from plaintiffs sand and/or gravel from the gravel pit.” (JA:631). On its face, therefore, the verdict might appear to include but a single predicate act by JML. None of the parties has raised this as an issue nor did any object to the verdict sheet. See (T2:1044~64). As noted above, the requirements of section 1962(c) must be established as to each individual defendant. See United States v. Persico, supra, 832 F.2d at 714. Under Rule 49(a) of the Federal Rules of Civil Procedure, however, a party who failed to object, before the jury retired, to the sub stance of special verdict questions to be put to the jury has no right to object to such matters on appeal. See, e.g., Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir.1992); Bohack Corp. v. Iowa Beef Processors, Inc., 715 F.2d 703, 710 n. 8 (2d Cir.1983). In any event, to the extent that the Special Verdict Form creates an issue whether two predicate acts were found by the jury with respect to JML, the Court treats the finding that JML “extorted from plaintiffs sand and/or gravel from the gravel pit” to include multiple" }, { "docid": "23091057", "title": "", "text": "Dec. 9, 1988, with courtesy copies to William Dirie and Joseph DeFal- co (E:288). Bernas’ December 1988 letter is well past the September 1987 point at which the plaintiffs allege the extortion began. The plaintiffs point to only one other extortionate act by the Bernas defendants with respect to the sand and gravel, namely, when the plaintiffs told the Bernas defendants to “cease and desist” from removing any additional gravel and “Bernas refused to do so, threatening adverse political action from members of the enterprise if plaintiffs tried to force him to do so .... ” Brief of Plaintiffs-Appellees-Cross-Appellants at 37-38. The record reveals, however, that DeFaleo did not instruct the Bernas defendants to refrain from removing additional gravel until December 15, 1989. (T2:207). When DeFaleo returned to New York in March 1990 from Florida and found Bernas’ people working on the JOBO site, DeFaleo again directed Bernas to stop work at JOBO and erected physical barriers there. (T2:208 — 12); see also “Cease and Desist Order” Letter from Joe DeFaleo to John Bernas, Inc. and JML Quarries dated Mar. 2,1990 (E:182). Similarly, the duration of the Bernas defendants’ predicate act of extorting the one-third interest in JOBO occurred over a relatively short period of time. DeFaleo testified that it was not until mid 1989 that he faced extortionate threats to induce the transfer of the JOBO stock to Bernas. (T2:176-83). DeFaleo transferred the one-third interest on December 6, 1989. See PL’s Ex. 60, Stock Transfer Agreement dated Dec. 6, 1989 (E:181); Pl.’s Ex. B31, JOBO Stock Certificate for John Bernas, Inc. (E:361). Although DeFaleo testified that, after he signed over the one-third interest in JOBO to Bernas, Bernas wanted rights to the entire gravel pit, on March 15, 1990, DeFaleo wrote to Bernas: “I feel that I am always being harassed over this gravel pit. I have no intentions of backing down anymore.” (T2:212); see also Letter from Joe DeFaleo to John Bernas, Inc. and JML Quarries dated Mar. 5, 1990 (E:183-84). DeFaleo testified that he finally had had enough and, after he attempted to submit a bond to" }, { "docid": "23091023", "title": "", "text": "Town as well as threats that the Phase I roads either would not be accepted for dedication by the Town or that the dedication process would be delayed. (T2:165-66). Although the Town was prepared to accept the roads in October 1988, see Sullivan County Board of Supervisors Letter from William Dirie dated Oct. 17, 1988 (E:287), in December 1988 Bernas sought to delay the dedication of the roads to the Town until they met his standards. See Letter from John Bernas to Robert M. Rosen dated Dee. 9, 1988, showing courtesy copies to William Dirie and Joseph DeFalco (E:288). Bernas also threatened adverse official action from the Town of Delaware if De-Falco did not give him the JOBO stock. On several occasions, Bernas indicated that, if DeFalco did not sign over the stock, the project would be scrapped and that Bernas had the power to cause the development to come to a halt. (T2:202). Dirie threatened adverse official action if DeFalco failed to give Bernas the stock (T2:178), and Delaware Town Engineer Terry Kelly, Tax Assessor Ferber, Tax Assessor Meckle and Building Inspector Steppich each pressured DeFalco to turn the stock over to Bernas. (T2:183). Once DeFalco transferred the stock to Bernas, the Phase I roads were immediately accepted for dedication by the Town. (T2:206). After DeFalco signed over the one-third interest in JOBO, however, Bernas wanted rights to the entire gravel pit and the dedication of the Phase I roads was called into question again. (T2:206). Bernas told DeFalco that, if he did not turn the gravel pit over to him, “[t]hey were going to close the development down.” (T2:214). When DeFalco resisted giving Bernas the entire gravel pit, Tax Assessors Ferber and Meckle reassessed certain lots from $20,000 to $45,000 a piece, more than doubling plaintiffs’ taxes. (T2:253). When DeFalco asked Dirie how he could get Phase II approved in light of the April 2, 1990 letter from the Town of Delaware Planning Board listing certain uncompleted requirements, Dirie replied, “Give Ber-nas the gravel pit.” (T2:225). Perhaps the most striking evidence that Bernas influenced the affairs of the" }, { "docid": "23091099", "title": "", "text": ". See also (T2:226-27) (“Q: Was John Ber-nas's approval necessary for the completion of Phase 2, to your knowledge, Mr. DeFalco? A: John Bernas is not an official, but I said it a hundred times, they controlled each other.\"); Letter from Joe DeFalco to John Ber-nas, Inc. dated May 8, 1990 (“You have proved your point, that John Bernas, Inc. has a lot of influence and control over the Town of Delaware.”). . Although the thrust of Bernas' argument regarding the Reves operation or management test is that the plaintiffs failed to establish that the Bernas defendants operated or managed the Town of Delaware, Bernas makes passing reference that it was “plain error to instruct the jury that it could find the requisite control by the Bernas Defendants over the Town of Delaware based merely on evidence of 'friendships.' “ See Brief of Defendants Appellants John Bernas, John Bernas, Inc. and JML Quarries, Inc. at 43. The Bernas defendants put forth no objection to the charge. See Fed.R.Civ.P. 51 (“[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.”); see also Fogarty v. Near North Ins. Brokerage, Inc., 162 F.3d 74, 79 (2d Cir.1998) (“A party who fails to object to a jury instruction at trial waives the right to make that instruction the basis for an appeal.”). Under these circumstances, the instructions are reviewed for “fundamental error,” which “is narrower than the plain error doctrine applicable to criminal cases.” Travelers Indent. Co. v. Scor Reinsurance Co., 62 F.3d 74, 79 (2d Cir.1995). Fundamental error is limited to “an error so serious and flagrant that it goes to the very integrity of the trial.” Id. (quoting Modave v. Long Island Jewish Med. Ctr., 501 F.2d 1065, 1072 (2d Cir.1974)). To qualify as a fundamental error a jury charge must have \"deprived the jury of adequate legal guidance to reach a rational decision.” Travelers Indent. Co., 62 F.3d at 79 (quoting" }, { "docid": "23090985", "title": "", "text": "barriers there. (T2:208 — 12); see also “Cease and Desist Order” Letter from Joe DeFalco to John Bernas, Inc. and JML Quarries dated Mar. 2, 1990 (E:182). On March 15, 1990, De-Falco wrote to Bernas: “I feel that I am always being harassed over this gravel pit. I have no intentions of backing down anymore.” (T2:212); see also Letter from Joe DeFalco to John Bernas, Inc. and JML Quarries dated Mar. 5, 1990 (E:183-84). DeFalco faced mounting pressure from several of the defendants to give Bernas the entire gravel pit. For example, Ber-nas told DeFalco that, if DeFalco did not turn over the gravel pit, “(t)hey were going to close the development down.” (T2:214). When DeFalco resisted giving Bernas the,entire gravel pit, Tax Assessors Ferber and Meckle reassessed certain lots from $20,000 to $45,000 a piece, more than doubling plaintiffs’ taxes. (T2:253). On or about April 2, 1990, the Town of Delaware Planning Board issued a letter listing certain requirements to be completed before final approval would be granted for Phase II. The Planning Board required: (1) a letter from Town Engineer Kelly stating that the roads satisfied certain town requirements; and (2) a letter from the Supervisor of the Town stating that the Town Board was satisfied that the Top of the World Estates had met certain guaranty requirements by posting a surety bond acceptable to the Town Board, as directed by the Town Attorney. (T2:223); see also Town of Delaware Planning Board Letter from V. Edward Curtis to Robert M. Rosen dated Apr. 2, 1990 (E:188; E:317). Only when those requirements were met would the Planning Board “give final approval to Phase 2 of the Top of the World Estates.” (T2:223); see also (E:188; E:317). When DeFalco subsequently spoke with Dirie about the letter and asked Dirie how he could get Phase II approved, Dirie replied, “Give Bernas the gravel pit.” (T2:225). DeFalco never completed Phase II nor sought any approvals from the Town in the years preceding trial. Although he had received conditional final approval for Phase II from the Town Planning Board and was invited to" } ]

[ { "docid": "17693795", "title": "", "text": "205. Considerations of convenience that in suits between private parties reasonably may justify exercise of discretion in support of such joinders have no bearing in a case such as this. . If, in a suit brought by Alabama against one of these States, this court should hold the assailed statute invalid and enjoin its enforcement, the decision would be authoritative and controlling as a precedent in all courts, state and federal. Presumably no other State would attempt on similar facts to enforce a like measure, and Alabama would have no occasion to invoke our jurisdiction further. The amended bill is multifarious. 2. This court may not be called on to give advisory opinions or to pronounce declaratory judgments. Muskrat v. United States, 219 U.S. 346. Willing v. Chicago Auditorium Assn., 277 U.S. 274, 288, and cases cited. Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 261-262. Its jurisdiction in respect of controversies between States will not be exerted in the absence of absolute necessity.- Louisiana v. Texas, 176 U.S. 1, 15. A State asking leave to sue another to prevent the enforcement of laws must allege, in the complaint offered for filing, facts that are clearly sufficient to call for a decree in its favor. Our decisions definitely establish that not every matter of sufficient moment to warrant resort to equity by one person against another would justify an interference by this court with the action of a State. Missouri v. Illinois, 200 U.S. 496, 520-521. New York v. New Jersey, 256 U.S. 296, 309. North Dakota v. Minnesota, 263 U.S. 365, 374. Leave, will not be granted unless the threatened injury is clearly shown to be of serious magnitude and imminent. Missouri v. Illinois, supra, 521. In the absence of specific showing to the contrary, it will be presumed that no State will attempt to enforce an unconstitutional enactment to the detriment of another. Cf. Ex parte La Prade, 289 U.S. 444, 458. The burden upon the plaintiff State fully and clearly to establish all essential elements of its case is greater than that generally required" } ]

[ { "docid": "18672108", "title": "", "text": "is such a concrete ease admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages. Nashville, C. & St. L. Ry. Co. v. Wallace, supra, 588 U.S. 249, p. 263, 53 S.Ct. 345, 77 L.Ed. 730; Tutun v. United States, 270 U.S. 568, 576, 577, 46 S.Ct. 425, 426, 70 L.Ed. 738; Fidelity National Bank v. Swope, 274 U.S. 123, 132, 47 S.Ct. 511, 514, 71 L.Ed. 959; Old Colony Trust Co. v. Commissioner, supra, p. 725. And as it is not essential to the exercise of the judicial power that an injunction be sought, allegations that irreparable injury is threatened are not required. Nashville, C. & St. L. Ry. Co. v. Wallace, supra, 288 U.S. p. 264, 53 S.Ct. 345.” Id. at 240-41, 57 S.Ct. at 464. Although the Haworth test has been described as “cryptic,” C. A. Wright, Law of Federal Courts 38 (3d ed.1976), and “imprecise,” Public Service Comn. v. Wycoff Co., 344 U.S. 237, 242, 73 S.Ct. 236, 239, 97 L.Ed. 291 (1965), it nevertheless provides a guidepost for our immediate inquiry. Generally, a case is ripe for adjudication when objective evidence of threatened state action establishes that the need to protect a plaintiff’s rights outweighs the disadvantages of adjudication. See Brilmayer, The Jurisprudence of Article III: Perspectives on the “Case or Controversy” Requirement, 93 Harv.L.Rev. 297, 299 (1979). In Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), for example, the state attorney general’s threatened enforcement of Minnesota’s newly established railroad rates prompted railroad stockholders to sue for an injunction before the allegedly confiscatory rates could go into effect. In upholding the issuance of the injunction the Supreme Court stated: “We have, therefore, upon this record the case of an unconstitutional act of the state legislature and an intention by the Attorney General of the State to endeavor to enforce its" }, { "docid": "9981225", "title": "", "text": "occurred which required any compensation or other relief. Yankwich, Pleading and Procedure (1926) §§ 211-216; Ball, The Annual Practice (1936) pp. 187-189. Given, therefore, ati actual controversy, the aim of the Declaratory Judgments Act is to allow courts to take jurisdiction of it in order to grant declaratory relief either before or after “the stage of relief by coercion has been reached.” See Gully v. Interstate Natural Gas Company (C.C.A.5, 1936) 82 F.(2d) 145, 149. As somebody once put it, through declaratory judgment the law is turned from a repair shop into a service station. None the less, the Declaratory Judgments Act does not change the character of the judicial power of the federal courts or the essential requisites for its exercise. See United States v. West Virginia (1935) 295 U.S. 463, 55 S.Ct. 789, 79 L.Ed. 1546; Ashwander v. Tennessee Valley Authority (1936) 56 S.Ct. 466, 80 L.Ed. 688; Southern Pacific Company v. McAdoo (C.C.A.9, 1936) 82 F.(2d) 121. The tendency of courts has been to interpret the power granted by the act “to declare rights and other legal relations” broadly. See Nashville, C. & St. L. R. Co. v. Wallace (1933) 288 U.S. 249, 261-264, 53 S.Ct. 345, 77 L.Ed. 730, 87 A.L.R. 1191; Ashwander v. Tennessee Valley Authority, supra; 1 C.J.S., Actions, #18, pp. 1018-1058. The jurisdiction of District Courts over suits or cases at law or in equity arising under the patent laws of the United States is both original and exclusive. 28 U.S.C.A. § 41; 28 U.S.C.A. § 371. And a cause of action arises under the patent laws when the plaintiff sets up some right, title, or interest under the patent laws. See Pratt v. Paris Gaslight Co. (1897) 168 U.S. 255, 259, 18 S.Ct. 62, 42 L.Ed. 458; Odell v. F. C. Farnsworth Co. (1919) 250 U.S. 501, 39 S.Ct. 516, 63 L.Ed. 1111; Dickinson Tire & Machine Co. v. Dickinson et al. (C.C.A.2, 1928) 29 F.(2d) 493. Certain it is that a person who claims the monopoly of a patent and another person who asserts the right to the use of the" }, { "docid": "14846441", "title": "", "text": "has carte blanche to enforce its conception of the policy of the Investment Company Act. I conclude that at most these plaintiffs may derive an incidental benefit under the Investment Company Act; that the deprivation of such a benefit, which the plaintiffs concede has no measurable pecuniary value, is not “irreparable damage.” Further, my brothers seem to feel that the plaintiffs are entitled to the injunction sought because without it the proposed issue will be accomplished and, at least as a practical matter, the immediate cause of controversy will become moot. Granted that they are right as to the postulated result, I submit that the conclusion based thereon is faulty. The extraordinary and drastic remedy of injunction is not the product of a slot machine into which any disgruntled stockholder can insert a nickel. It does not issue in every case as of right merely to preserve the status quo pending final de ■termination of the merits. Nor is its function merely to support hopes or malice. It issues only at the discretion of the chancellor on a showing of irreparable injury. And that injury must be more than a vague statement of a remote and contingently potential harm. This principle was recognized — although, to be sure, in quite a different setting — in State of New Jersey v. Sargent, 269 U.S. 328, 46 S.Ct. 122, 70 L.Ed. 289; State of Arizona v. State of California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154; Commonwealth of Massachusetts v. Melon, 262 U.S. 447, 48 S.Ct. 597, 67 L.Ed. 1078; and Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730. I am not so much concerned by the possibility that the proposed stock issue may in the long-range future turn out to be disadvantageous to the common stock. After all that is essentially a question of business judgment primarily for management which in the normal course minority stockholders must accept. Here management has made its decision and the decision has been affirmed by a large majority of the voting stocks and" }, { "docid": "2782752", "title": "", "text": "232, 71 U.S. 232, 237, 18 L.Ed. 303; A. O. Smith Corporation v. Petroleum Iron Works, 6 Cir. 73 F.2d 531, 537, where it is said a prior determination must be based on the merits. . Kelley v. Everglades Drainage District, 319 U.S. 415, 421, 63 S.Ct. 1141, 87 L.Ed. 1485. . Findings must be “sufficiently comprehensive and pertinent to the issues in the case so as to provide a basis for purposes of decision.” Shapiro v. Rubens, 7 Cir., 166 F.2d 659, 665; Schilling v. Schwitzer-Cummins Co., 79 U.S.App.D.C. 20, 142 F.2d 82, 84. . See as to Jewell Ridge Coal Corporation v. Local 6167, D.C., 53 F.Supp. 935, 937; Id., 4 Cir., 145 F.2d 10; as to Tennessee Coal, Iron & Railroad Co. et al. v. Muscoda Local No. 123, D.C., 40 F.Supp. 4, 11; Id., 5 Cir., 135 F.2d 320, 322; Id., 5 Cir., 137 F.2d 176, 180; Id., 321 U.S. 590, 603, 64 S.Ct. 698, 88 L.Ed., 949, 152 A.L.R. 1014 (directions for findings). . Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 460-462, 65 S.Ct. 1384, 89 L.Ed. 1725. See Altvater v. Freeman, 319 U.8. 359, 363, 63 S.Ct. 1115, 87 L.Ed. 1450; United States v. West Virginia, 295 U.S. 463, 475, 55 S.Ct. 789, 79 L.Ed. 1546; Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000. . Colegrove v. Green, 328 U.S. 549, 552, 66 S.Ct. 1198, 90 L.Ed. 1432; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 325, 56 S.Ct. 466, 80 L.Ed. 688. Cf. Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 300, 63 S.Ct. 1070, 87 L.Ed. 1407; Nashville, Chattanooga & St. Louis Railway Co. v. Wallace, 288 U.S. 249, 262, 53 S.Ct. 345, 77, L.Ed. 730, 87 A.L.R. 1191. . 29 U.S.C.A. § 213(a) (6). . 29 U.S.C.A. § 203(f). . 29 U.S.C.A. § 207(e). . 29 U.S.C.A. § 203(j). . Cf. Interstate Circuit, Inc. v. United States, 304 U.S. 55, 56, 58 S.Ct. 768, 769, 82 L.Ed. U46. “The statements in the decree that" }, { "docid": "18672107", "title": "", "text": "at 14-20). The classic test of justiciability was set forth by Mr. Chief Justice Hughes in Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937): “A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. United States v. Alaska S. S. Co., 253 U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. South Spring Gold Co. v. Amador Gold Co., 145 U.S. 300, 301, 12 S.Ct. 921, 36 L.Ed. 712; Fairchild v. Hughes, 258 U.S. 126, 129, 42 S.Ct. 274, 275, 66 L.Ed. 499; Massachusetts v. Mellon, 262 U.S. 447, 487, 488, 43 S.Ct. 597, 67 L.Ed. 1078. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising that the law would be upon a hypothetical state of facts. Where there is such a concrete ease admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages. Nashville, C. & St. L. Ry. Co. v. Wallace, supra, 588 U.S. 249, p. 263, 53 S.Ct. 345, 77 L.Ed. 730; Tutun v. United States, 270 U.S. 568, 576, 577, 46 S.Ct. 425, 426, 70 L.Ed. 738; Fidelity National Bank v. Swope, 274 U.S. 123, 132, 47 S.Ct. 511, 514, 71 L.Ed. 959; Old Colony Trust Co. v. Commissioner, supra, p. 725. And as it is not essential to the exercise of the judicial power that an injunction be sought, allegations that irreparable injury is threatened are not required. Nashville, C. & St. L. Ry. Co. v. Wallace, supra, 288 U.S. p. 264, 53 S.Ct. 345.” Id. at 240-41, 57 S.Ct. at 464. Although the Haworth test has been described" }, { "docid": "10427525", "title": "", "text": "271, 279-281, 58 S.Ct. 926, 82 L.Ed. 1337; Morrissey v. Commissioner of Internal Revenue, 296 U.S. 344, 56 S.Ct. 289, 80 L.Ed. 263; Burnet v. Guggenheim, 288 U.S. 280, 289, 53 S.Ct. 369, 77 L.Ed. 748; Burnet v. Harmel, 287 U.S. 103, 110, 53 S.Ct. 74, 77 L.Ed. 199; Bankers Pocahontas Coal Co. v. Burnet, 287 U.S. 308, 310, 53 S.Ct. 150, 77 L.Ed. 325; Palmer v. Bender, 287 U.S. 551, 555, 53 S.Ct. 225, 77 L.Ed. 489; Botany Worsted Mills v. United States, 278 U. S. 282, 292, 49 S.Ct. 129, 73 L.Ed. 379; New York Life Ins. Co. v. Edwards, 271 U.S. 109, 119-120, 46 S.Ct. 436, 70 L.Ed. 859; Burk-Waggoner Oil Ass’n v. Hopkins, 269 U.S. 110, 114, 46 S.Ct. 48, 70 L. Ed. 183; Hecht v. Malley, 265 U.S. 144, 160, 161, 163, 44 S.Ct. 462, 68 L.Ed. 949 ; Y. M. C. A. v. Davis, 264 U. S. 47, 44 S.Ct. 291, 68 L.Ed. 558; Lederer v. Stockton, 260 U.S. 3, 43 S.Ct. 5, 67 L. Ed. 99; United States v. Field, 255 U. S. 257, 41 S.Ct. 256, 65 L.Ed. 617, 18 A.L.R. 1461; Merchants’ L. & T. Co. v. Smietanka, 255 U.S. 509, 521, 41 S.Ct. 386, 65 L.Ed. 751, 15 A.L.R. 1305; Crocker v. Malley, 249 U.S. 223, 39 S.Ct. 270, 63 L.Ed. 573, 2 A.L.R. 1601; Von Baum bach v. Sargent Land Co., 242 U.S. 503, 518-521, 521-522, 37 S.Ct. 201, 61 L.Ed. 460. Commissioner of Internal Revenue v. Court Holding Co., 65 S.Ct. 707; Interstate Transit Lines v. Commissioner of Internal Revenue, 319 U.S. 590, 594, 63 S.Ct. 1279, 87 L.Ed. 1607; Moline Properties v. Commissioner of Internal Revenue, 319 U.S. 436, 439, 63 S.Ct. 1132, 87 L.Ed. 1499; Lyeth v. Hoey, 305 U.S. 188, 196, 59 S.Ct. 155, 83 L.Ed. 119, 119 A.L.R. 410; United States v. Phellis, 257 U.S. 156, 168, 42 S.Ct. 63, 66 L.Ed. 180; Eisner v. Macomber, 252 U.S. 189, 213, 40 S.Ct. 189, 64 L.Ed. 521, 9 A.L.R. 1570; Gulf Oil Corporation v. Lewellyn, 248 U.S. 71, 39 S.Ct. 35, 63 L.Ed. 133; Southern" }, { "docid": "22539464", "title": "", "text": "S. 126, 129; Massachusetts v. Mellon, 262 U. S. 447, 487, 488. It must be a real and substantial controversy 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. See Muskrat v. United States, supra; Texas v. Interstate Commerce Comm’n, 258 U. S. 158, 162; New Jersey v. Sargent, 269 U. S. 328, 339, 340; Liberty Warehouse Co. v. Grannis, 273 U. S. 70; New York v. Illinois, 274 U. S. 488, 490; Willing v. Chicago Auditorium Assn., 277 U. S. 274, 289, 290; Arizona v. California, 283 U. S. 423, 463, 464; Alabama v. Arizona, 291 U. S. 286, 291; United States v. West Virginia, 295 U. S. 463, 474, 475; Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 324. WRere there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages. Nashville, C. & St. L. Ry. Co. v. Wallace, supra, p. 263; Tutun v. United States, 270 U. S. 568, 576, 577; Fidelity National Bank v. Swope, 274 U. S. 123, 132; Old Colony Trust Co. v. Commissioner, supra, p. 725. And as it is not essential to the exercise of the judicial power that an injunction be sought, allegations that irreparable injury is threatened are not required. Nashville, C. & St. L. Ry. Co. v. Wallace, supra, p. 264. With these principles governing the application of the Declaratory Judgment Act, we turn to the nature of the controversy, the relation and interests of the parties, and the relief sought in the instant case. Second. There is here a dispute between parties who face each other in an adversary proceeding. The dispute relates to legal rights and obligations arising from the contracts of insurance. The dispute is definite and concrete, not hypothetical" }, { "docid": "9654966", "title": "", "text": "rendered against the defendant-insurer, this does not stand in the way of a declaration. As said in Nashville, C. & St. L. Ry. Co. v. Wallace, 1933, 288 U.S. 249, 263, 53 S.Ct. 345, 348, 77 L.Ed. 730, 87 A.L.R. 1191: “While the ordinary course of judicial procedure results in a judgment requiring an award of process or execution to carry it into effect, such relief is not an indispensable adjunct to the exercise of the judicial function. Fidelity National Bank v. Swope, supra, 274 U.S. [123] 132, 47 S.Ct. 511, 71 L.Ed. 959. This court has often exerted its judicial power to adjudicate boundaries between states, although it gave no injunction or other relief beyond the determination of the legal rights which were the subject of controversy between the parties, Louisiana v. Mississippi, 202 U.S. 1, 26 S.Ct. 408, 571, 50 L.Ed. 913; Arkansas v. Tennessee, 246 U.S. 158, 38 S.Ct. 301, 62 L.Ed. 638, L.R.A. 1918D, 258; Georgia v. South Carolina, 257 U.S. 516, 42 S.Ct. 173, 66 L.Ed. 347; Oklahoma v. Texas, 272 U.S. 21, 47 S.Ct. 9, 71 L.Ed. 145; Michigan v. Wisconsin, 272 U.S. 398, 47 S.Ct. 114, 71 L.Ed. 315; and to review judgments of the Court of Claims, although no process issues against the government, United States v. Jones, 119 U.S. 477, 7 S.Ct. 283, 30 L.Ed. 440. Compare District of Columbia v. Eslin, 183 U.S. 62, 22 S.Ct. 17, 46 L.Ed. 85; Ex parte Pocono Pines Assembly Hotels Co., 285 U.S. 526, 52 S.Ct. 392, 76 L.Ed. 923, reported below in 73 Ct.Cl. 447. As we said in Fidelity National Bank v. Swope, supra, 274 U.S. 123, 132, 47 S.Ct. 511, 71 L.Ed. 959, ‘Naturalization proceedings, Tutun v. United States, 270 U.S. 568, 46 S.Ct. 425, 70 L.Ed. 738; suits to determine a matrimonial or other status; suits for instructions to a trustee or for the construction of a will, Traphagen v. Levy, 45 N.J.Eq. 448, 18 A. 222; bills of interpleader, so far as the stakeholder is concerned, Wakeman v. Kingsland, 46 N.J.Eq. 113, 18 A. 680; bills to quiet title" }, { "docid": "22665248", "title": "", "text": "any prejudice to either the Power Company or the Authority, so far as the subject matter of the contract between them is concerned, or that there is any basis for the claim of estoppel. We think that plaintiffs have made a sufficient showing to entitle them to bring suit and that a constitutional question is properly presented .and should be decided. Second. The scope of the issue. We agree with the Circuit Court of Appeals that the question to be determined is limited to the validity of the contract of January 4, 1934. The pronouncements, policies and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the persons complaining. The judicial power does not extend to the determination of abstract questions. Muskrat v. United States, 219 U. S. 346, 361; Liberty Warehouse Co. v. Grannis, 273 U. S. 70, 74; Willing v. Chicago Auditorium Assn., 277 U. S. 274, 289; Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U. S. 249, 262, 264. It was for this reason that the Court dismissed the bill of the State of New Jersey which sought to obtain a judicial declaration that in certain features the Federal Water Power Act exceeded the authority of the Congress and encroached upon that of the State. New Jersey v. Sargent, 269 U. S. 328. For the same reason, the State of New York, in her suit against the State of Illinois, failed in her effort to obtain a decision of abstract questions as to the possible effect of the diversion of water from Lake Michigan upon hypothetical water power developments in the indefinite future. New York v. Illinois, 274 U. S. 488. At the last term the Court held, in dismissing the bill of the United States against the State of West Virginia, that general allegations that the State challenged the claim of the United States that the rivers in" }, { "docid": "1289422", "title": "", "text": "the claimant may have had to obtain indemnity from the United States. See Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311. For the foregoing reasons the decree must be reversed and the cause remanded with directions to dismiss the libel against the tugs and to enter a decree against the United States in favor of the libellant. The appellants are awarded appellate costs. . The Sarnia, 2 Cir., 261 F. 900, 901; The Coamo, 2 Cir., 267 F. 686, 688; The Helen, 2 Cir., 5 F.2d 54, 55-56; The Niels R. Finsen, D.C.S.D.N.Y., 52 F.2d 795, 797-798. See also The W. L. Steed, 2 Cir., 79 F.2d 2, 5, cert. denied sub nom. John E. Moore Co. v. Pan American Petroleum & Transport Co., 297 U.S. 708, 56 S.Ct. 500, 80 L.Ed. 995. . The China, 7 Wall. 53, 74 U.S. 53, 67-68, 19 L.Ed. 67; See The Barnstable, 181 U.S. 464, 467, 21 S.Ct. 684, 45 L.Ed. 954; The Eugene F. Moran, 212 U.S. 466, 474, 29 S.Ct. 339, 53 L.Ed. 600; Canadian Aviator, Ltd. v. U. S., 324 U.S. 215, 224, 65 S.Ct. 639, 89 L.Ed. 901; cf. Homer Ramsdell Transportation Co. v. Comp. Gen. Trans., 182 U.S. 406, 21 S.Ct. 831, 45 L.Ed. 1155 (suit at common law). . The Helen, 2 Cir., 5 F.2d. 54, 55; The Maren Lee, 2 Cir., 278 F. 918, 920; The Niels R. Finsen, D.C.S.D.N.Y., 52 F.2d 795, 798; cf. The Eugene F. Moran, 212 U.S. 466, 474, 29 S.Ct. 339, 53 L.Ed. 600. . Eastern Transporation Co. v. U. S., 272 U.S. 675, 690, 47 S.Ct. 289, 71 L.Ed. 472. . The Chickie, 3 Cir., 141 F.2d 80, 85-86; The Monte A., D.C.S.D.N.Y., 12 F. 331, 333-336; The Ethel, 5 Cir., 66 F. 340; The Nora, D.C.S.D.Fla., 181 F. 845; The City of Singapore, D.C.S.D.N.Y., 68 F.Supp. 164, 165. . The Minnetonka, 2 Cir., 146 F. 509, 515. . 12 F. 331, 337. CLARK, Circuit Judge (dissenting). This case seems to have bogged down in a welter of procedural technicalities. Latterly, at" }, { "docid": "2782753", "title": "", "text": "McAdory, 325 U.S. 450, 460-462, 65 S.Ct. 1384, 89 L.Ed. 1725. See Altvater v. Freeman, 319 U.8. 359, 363, 63 S.Ct. 1115, 87 L.Ed. 1450; United States v. West Virginia, 295 U.S. 463, 475, 55 S.Ct. 789, 79 L.Ed. 1546; Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000. . Colegrove v. Green, 328 U.S. 549, 552, 66 S.Ct. 1198, 90 L.Ed. 1432; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 325, 56 S.Ct. 466, 80 L.Ed. 688. Cf. Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 300, 63 S.Ct. 1070, 87 L.Ed. 1407; Nashville, Chattanooga & St. Louis Railway Co. v. Wallace, 288 U.S. 249, 262, 53 S.Ct. 345, 77, L.Ed. 730, 87 A.L.R. 1191. . 29 U.S.C.A. § 213(a) (6). . 29 U.S.C.A. § 203(f). . 29 U.S.C.A. § 207(e). . 29 U.S.C.A. § 203(j). . Cf. Interstate Circuit, Inc. v. United States, 304 U.S. 55, 56, 58 S.Ct. 768, 769, 82 L.Ed. U46. “The statements in the decree that in making the restrictive agreements the parties had engaged in an illegal conspiracy were but ultimate conclusions and did not dispense with the necessity of properly formulating the underlying findings of fact.” . Kelley v. Everglades Drainage District, supra : Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364. 373, 59 S.Ct. 301, 83 L.Ed. 221. . The situation has not been aided on appeal so far as clarity is concerned by the intervention amici curiae of the Administrator of the Department of Labor, who takes a Janus-like position, and the American Farm Bureau Federation of the United States of America and American Sugar Cane League of the United States of America, Inc., since none of them discuss the matter on the record or with relation to the particular defendant employees. . D. A. Schulte, Inc. v. Gangi, 328 U.S. 108, 116, 66 S.Ct. 925, 90 LEd. 1114, 167 A.L.R. 208. . United States, et al. v. Johnson, 319 U.S. 302, 304, 63 S.Ct. 1075, 87 L.Ed. 1413; Coffman v. Breeze Corporations, Inc.," }, { "docid": "22539463", "title": "", "text": "Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U. S. 249, 264. In dealing with methods within its sphere of remedial action the Congress may create and improve as well as abolish or restrict. The Declaratory Judgment Act must be deemed to fall within this ambit of congressional power, so far as it authorizes relief which is consonant with the exercise of the judicial function in the determination of controversies to which under the Constitution the judicial power extends. A “controversy” in this sense must be one that is appropriate for judicial determination. Osborn v. United States Bank, 9 Wheat. 738, 819. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. United States v. Alaska S. S. Co., 253 U. S. 113, 116. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. South Spring Gold Co. v. Amador Gold Co., 145 U. S. 300, 301; Fairchild v. Hughes, 258 U. S. 126, 129; Massachusetts v. Mellon, 262 U. S. 447, 487, 488. It must be a real and substantial controversy 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. See Muskrat v. United States, supra; Texas v. Interstate Commerce Comm’n, 258 U. S. 158, 162; New Jersey v. Sargent, 269 U. S. 328, 339, 340; Liberty Warehouse Co. v. Grannis, 273 U. S. 70; New York v. Illinois, 274 U. S. 488, 490; Willing v. Chicago Auditorium Assn., 277 U. S. 274, 289, 290; Arizona v. California, 283 U. S. 423, 463, 464; Alabama v. Arizona, 291 U. S. 286, 291; United States v. West Virginia, 295 U. S. 463, 474, 475; Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 324. WRere there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be" }, { "docid": "13462559", "title": "", "text": "It must be a real and substantial controversy 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. * * * Where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages. * * * And as it is not essential to the exercise of the judicial power that an injunction be sought, allegations that irreparable injury is threatened are not required.” In Maryland Casualty Co. v. Pacific Co., 312 U.S. 270, 272, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826, the court said: “The question is whether petitioner’s allegations are sufficient to entitle it to the declaratory relief prayed in its complaint. This raises the question whether there is an ‘actual controversy’ within the meaning of the Declaratory Judgment Act, Judicial Code § 274d, 28 U.S.C. § 400, 28 U.S.C.A. § 400, since the District Court is without power to grant declaratory relief unless such a controversy exists. Nashville C. & St. L. Ry. Co. v. Wallace, 288 U.S. 249, 259, 53 S.Ct. 345, 346, 77 L.Ed. 730, 87 A.L.R. 1191; U.S.C.A. Constitution, Art. III, § 2. “The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-242, 57 S.Ct. 461, 463, 464, 81 L.Ed. 617, 108 A.L.R." }, { "docid": "18943704", "title": "", "text": "commerce within the District of Columbia or within any other Territory not organized with a legislative body.” See § 402(a) (3) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 342(a) (3). See § 402(a) (4) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 342(a) (4). See § 304(a) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 334(a). Cf. American Steel & Wire Co. v. Speed, 192 U.S. 500, 24 S.Ct. 305, 48 L.Ed. 538; General Oil Co. v. Crain, 209 U.S. 211, 28 S.Ct. 475, 52 L.Ed. 754; Bacon v. People of State of Illinois, 227 U.S. 504, 33 S.Ct. 299, 57 L.Ed. 615; Texas Co. v. Brown, 258 U S. 466, 42 S. Ct. 375, 66 L.Ed. 721; Sonneborn v. Cureton, 262 U.S. 506, 43 S.Ct. 643, 67 L.Ed. 1095; Gregg Dyeing Co. v. Query, 286 U.S. 472, 52 S.Ct. 631, 76 L.Ed. 1232, 84 A.L.R. 831; Nashville, C. & St. L. R. Co. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730, 87 A.L.R. 1191; Louis K. Liggett Co. v. Lee, 288 U.S. 517, 53 S.Ct. 481, 77 L.Ed. 929, 85 A. L.R. 699; Edelman v. Boeing Air Transport, 289 U.S. 249, 53 S.Ct. 591, 77 L. Ed. 1155; Southern Pac. Co. v. Gallagher, 306 U.S. 167, 59 S.Ct. 389, 83 L. Ed. 586; Walling v. Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460; Higgins v. Carr Bros. Co., 317 U.S. 572, 63 S.Ct. 337, 87 L.Ed. 468. Cf. Woodruff v. Parham, 8 Wall. 123, 19 L.Ed. 382; Hinson v. Lott, 8 Wall. 148, 19 L.Ed. 387; American Steel & Wire Co. v. Speed, supra; Baccus v. State of Louisiana, 232 U.S. 334, 34 S.Ct. 439, 58 L.Ed. 627; Wagner v. City of Covington, 251 U.S. 95, 40 S.Ct. 93, 64 L.Ed. 157; Sonneborn v. Cureton, supra; Wiloil Corporation v. Commonwealth of Pennsylvania, 294 U.S. 169, 55 S.Ct. 358, 79 L.Ed. 838; Whitfield v. State of Ohio, 297 U.S. 431, 56 S.Ct. 532, 80 L.Ed. 778. Act of June 30, 1906, c. 3915," }, { "docid": "22385301", "title": "", "text": "S. 428; Federal Radio Commission v. General Electric Co., 281 U. S. 464, the question lends itself to judicial determination and is of. the kind which this Court traditionally decides. The relief sought is a definitive adjudication of the disputed constitutional right of the appellant, in the circumstances alleged, to be free from the tax, see Old Colony Trust Co. v. Commissioner, 279 U. S. 716, 724; and that. adjudication is not, as in Gordon v. United States, 2 Wall. 561, and Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693, subject to revision by some' other and more authoritative agency. Obviously the appellant, whose duty to pay the tax will be determined by the decision of this case, is not attempting to secure an abstract determination by the Court of the validity of a statute, compare Muskrat v. United States, supra, 361; Texas v. Interstate Commerce Commission, supra, 162; or a decision advising what the law would be on an uncertain or hypothetical state of facts, as was thought to be the case in Liberty Warehouse Co. v. Grannis, 273 U. S. 70, and Willing v. Chicago Auditorium Assn., 277 U. S. 274; see also Warehouse Co. v. Tobacco Growers Assn., 276 U. S. 71, 88; compare Arizona v. California, 283 U. S. 423, 463. Thus the narrow question presented for determination is whether the controversy before us, which would be justiciable in this Court if presented in a suit for injunction, is any the íess so because through a modified procedure appellant has been permitted to present it in the state courts, without praying for an injunc tion or alleging that irreparable injury will result from the collection of the tax. While tjie ordinary course of judicial procedure results in a judgment requiring an award of process or execution to carry it into, effect, such relief is not an indispensable -adjunct to the exercise of the judicial function. Fidelity National Bank v. Swope, supra, 1932; This Court has often exerted its judicial power to adjudicate boundaries between states, although it gave no injunction or other" }, { "docid": "14846442", "title": "", "text": "chancellor on a showing of irreparable injury. And that injury must be more than a vague statement of a remote and contingently potential harm. This principle was recognized — although, to be sure, in quite a different setting — in State of New Jersey v. Sargent, 269 U.S. 328, 46 S.Ct. 122, 70 L.Ed. 289; State of Arizona v. State of California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154; Commonwealth of Massachusetts v. Melon, 262 U.S. 447, 48 S.Ct. 597, 67 L.Ed. 1078; and Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730. I am not so much concerned by the possibility that the proposed stock issue may in the long-range future turn out to be disadvantageous to the common stock. After all that is essentially a question of business judgment primarily for management which in the normal course minority stockholders must accept. Here management has made its decision and the decision has been affirmed by a large majority of the voting stocks and approved by the I.C.C. To be sure, Alleghany may eventually be found to be subject to the Investment Company Act, with a result which may, or may not, be more advantageous to common stockholders. The loss of this remote and contingent advantage the law does not, I think, classify as irreparable damage. Consequently, in the situation here, I am more concerned with the hardship that the injunction will impose on others. From the affidavit of Alleghany’s secretary-treasurer received in opposition to the injunction sought, I find that the effect of the injunction will be seriously to embarrass Alleghany (a) in obtaining the renewal of various bank loans aggregating $8,200,000 which will mature on or about September 15, 1955 and (b) in its negotiations for refunding these loans on a more favorable basis. As a result it may become necessary to pay off the loans and for that purpose to liquidate part of its portfolio. (In this connection, I think it may be inferred that the most favorable terms cannot be obtained by forced liquidation to" }, { "docid": "13887588", "title": "", "text": "Moore v. Ruckgaber, 184 U.S. 593, 596, 22 S.Ct. 521, 46 L.Ed. 705; Eidman v. Martinez, 384 U.S. 578, 589, 22 S.Ct. 535, 46 L.Ed. 697; Orr v. Gilman, 183 U.S. 278, 289, 22 S.Ct. 213, 46 L.Ed. 196; Sherman v. United States, 178 U.S. 150, 20 S.Ct. 779, 44 L.Ed. 1014; Murdock v. Ward, 178 U.S. 139, 20 S.Ct. 775, 44 L.Ed. 1009; Plummer v. Coler, 378 U.S. 115, 134, 20 S.Ct. 829, 44 L.Ed. 998; Fidelity Ins. Trust & S. D. Co. v. McClain, 178 U.S. 113, 20 S.Ct. 774, 44 L.Ed. 998; High v. Coyne, 178 U.S. 111, 112, 20 S.Ct. 747, 44 L.Ed. 997; Knowlton v. Moore, 178 U.S. 41, 47, 20 S.Ct. 747, 44 L.Ed. 969; Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 288, 18 S.Ct. 594, 42 L.Ed. 1037. Also see Industrial Trust Co. v. United States, 296 U.S. 220, 56 S.Ct. 182, 80 L.Ed. —; Bingham v. United States, 296 U.S. 211, 219, 56 S.Ct. 180, 80 L.Ed. —; White v. Poor, 296 U.S. 98, 56 S.Ct. 66, 80 L.Ed.-; Helvering v. Heimkolz, 296 U.S. 93, 56 S.Ct. 68, 80 L.Ed. —; Helvering v. City Bank Farmers’ Trust Co., 296 U.S. 85., 88, 56 S.Ct. 70, 80 L.Ed. -; Helvering v. St. Louis Union Trust Co., 296 U.S. 39, 56 S.Ct. 74, SO L.Ed. —, 100 A.L.R. 1239; Becker v. St. Louis Union Trust Co., 296 U.S. 48, 56 S.Ct. 78, 80 L.Ed. —; Griswold v. Helvering, 290 U.S. 56, 58, 54 S.Ct. 5, 78 L.Ed. 166; Porter v. Commissioner, 288 U.S. 436, 443, 53 S.Ct. 451, 77 L.Ed. 880; Guaranty Trust Co. v. Blodgett, 287 U.S. 509, 513, 53 S.Ct. 244, 77 L.Ed. 463; Gwinn v. Commissioner of Internal Revenue, 287 U.S. 224, 228, 53 S.Ct. 157, 77 L.Ed. 270; Phillips v. Dime Trust & S. D. Co., 284 U.S. 160, 165, 52 S.Ct. 46, 76 L.Ed. 220; Klein v. United States, 283 U.S. 231, 234, 51 S.Ct. 398, 75 L.Ed. 996; Coolidge v. Long, 282 U.S. 582, 598, 51 S.Ct. 306, 75 L.Ed. 562; Tyler v. United States," }, { "docid": "14529281", "title": "", "text": "English, 246 U. S. 199, 205, 38 S.Ct. 254, 62 L.Ed. 664; Markham v. Allen, 326 U.S. 490, 494, 66 S.Ct. 296, 90 L.Ed. 256. In Sutton v. English, supra, the plaintiffs sought to annul parts of the 12th paragraph of the will of Mary Jane Hubbard on the ground “that in her last sickness, while she was clouded in her intellect and was not of sound or disposing mind or memory, she was unduly influenced by the defendant English to execute an instrument in the form of a will purporting to dispose of her accumulations and separate property, by the 12th paragraph of which she gave and bequeathed all the residue of her property to her niece Cora D. Spencer”. 246 U.S. at pages 202, 203, 38 S.Ct. at page 255. That was a matter strictly probate, the testamentary capacity of the testator. As has been said, no such ground is urged in the present case. At the time of the decision of Sutton v. English (1918), the Texas State courts of general jurisdiction had no power to annul any particular provision of a will in a suit inter partes. By the enactment of the Uniform Declaratory Judgment Act in 1943 by the Texas Legislature, such power was vested in the state courts of general jurisdiction. At one time the Supreme Court held that a federal court had no jurisdiction to proceed in accordance with a state declaratory judgment act, because no “case” or “controversy” was presented. Liberty Warehouse Co. v. Grannis, 273 U.S. 70, 47 S.Ct. 282, 71 L.Ed. 541. Any such doubt as to constitutional limitations on federal judicial power have now been removed in cases such as this presenting for decision an actual controversy. Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 259, 53 S.Ct. 345, 77 L.Ed. 730; Public Service Commission v. Wycoff Co., 344 U.S. 237, 241, 73 S.Ct. 236, 97 L.Ed. 291; South ern Harlan Coal Co. v. Ala. Fuel & Iron Co., D.C.E.D. Ky., 58 F.Supp. 600; Constitution of United States Revised and Annotated, 1952, Doc. 170, 82nd Congress," }, { "docid": "22665249", "title": "", "text": "Willing v. Chicago Auditorium Assn., 277 U. S. 274, 289; Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U. S. 249, 262, 264. It was for this reason that the Court dismissed the bill of the State of New Jersey which sought to obtain a judicial declaration that in certain features the Federal Water Power Act exceeded the authority of the Congress and encroached upon that of the State. New Jersey v. Sargent, 269 U. S. 328. For the same reason, the State of New York, in her suit against the State of Illinois, failed in her effort to obtain a decision of abstract questions as to the possible effect of the diversion of water from Lake Michigan upon hypothetical water power developments in the indefinite future. New York v. Illinois, 274 U. S. 488. At the last term the Court held, in dismissing the bill of the United States against the State of West Virginia, that general allegations that the State challenged the claim of the United States that the rivers in question were navigable, and asserted a right superior to that of the United States to license their use for power production, raised an issue “too' vague and ill-defined to admit of judicial determination.” United States v. West Virginia, 295 U. S. 463, 474. Claims based merely upon “assumed potential invasions” of rights are not enough to warrant judicial intervention. Arizona v. California, 283 U. S. 423, 462. The Act of June 14, 1934, providing for declaratory judgments, does not attempt to change the essential requisites for the exercise of judicial power. By its terms, it applies to “cases of actual controversy,” a phrase which must be taken to connote a controvery of a justiciable nature, thus excluding an advisory decree upon a hypothetical state of facts. See Nashville, C. & St. L. Ry. Co. v. Wallace, supra. While plaintiffs, as stockholders, might insist that the board of directors should take appropriate legal measures to extricate the corporation from particular transactions and agreements alleged to be invalid, plaintiffs had no right to demand that the directors" }, { "docid": "14439896", "title": "", "text": "Consequently, this Court merely adopted, as one of its rules of procedure, the same rule of procedure which was then being followed by constitutional Federal courts. While section 2201 was enacted by Congress for constitutional courts, this procedure was not a process patented by Congress and restricted for exclusive use of constitutional courts only. This procedure was already in use in 34 states at the time Congress made it available to the constitutional courts. As expressed by the Supreme Court in Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 241, 73 S.Ct. 236, 239, 97 L.Ed. 291, “The Senate Judiciary Committee recommended an adaptation of the principle to federal practice.” and that “Previous to its enactment there were responsible expressions of doubt that constitutional limitations on federal judicial power would permit any federal declaratory judgment procedure. Cf. Liberty Warehouse Co. v. Grannis, 273 U.S. 70, 47 S.Ct. 282, 71 L.Ed. 541; Willing V. Chi cago Auditorium Ass’n, 277 U.S. 274, 48 S.Ct. 507, 72 L.Ed. 880; State of Arizona v. State of California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154; Piedmont & N. R. Co. v. United States, 280 U.S. 469, 50 S.Ct. 192, 74 L.Ed. 551. Finally, as the practice extended in the states, we reviewed a declaratory judgment rendered by a state court and held that a controversy which would be justiciable in this Court if presented in a suit for injunction is not the less so because the relief was declaratory. Nashville, C. & St. L. R. Co. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730.” It should also be noted in this connection that in one of the declaratory judgments rendered by this Court pursuant to its order promulgated as above, that this Court granted a declaratory judgment in the case of H. I. Hettinger & Co. v. Municipality of St. Thomas and St. John, Civil Number 226-1949. That judgment was appealed to the United States Court of Appeals for the Third Circuit and there affirmed on March 9, 1951, 187 F.2d 774. We realize that neither in" } ]

[ { "docid": "22692399", "title": "", "text": "reason for this conclusion that the “net addition if any, required by law to be made within the year to reserve -funds” which the act of Congress permitted to be deducted from gross income was limited to reserves required by express statutory provision and did not apply to reserves required by the rules and regulations of State Insurance Departments, when promulgated in the exercise of an appropriate power conferred by statute. In this the Court of Claims fell into error. It is settled by many recent decisions of this court that a regulation by a department of government, addressed to and reasonably-adapted to the enforcement of an act of Congress, the administration of which is confided to such department, has the force and effect of law if it be not in conflict with express statutory provision. United States v. Grimaud, 220 U. S. 506; United States v. Birdsall, 233 U. S. 223, 231; United States v. Smull, 236 U. S. 405, 409, 411; United States v. Morehead, 243 U. S. 607. The law is hot different with respect, to the rules and regulations of a department of a state government. But it is contended by the claimant that it was required to provide “reserves” for the payment of the rejected items of liability: because the Court of Claims found that pursuant- to statutes -the Insurance Department of Pennsylvania required the company, as a condition of doing business:in:that State, to keep on hand “assets as reserves” sufficient-to cover all claims against the company “whether due hr accrued”; because the department of New York required'it to maintain “reserves sufficient to mfeet all of its accrued but unpaid indebtedness in each year”; and because' tibie department of Wisconsin required it to carry “sufficient reserves to cover all of its outstanding liabilities A Whether this contention of tñe claimant can be justified or not depends upon the meaning which is to be given to the words “reserve funds” in the two acts of Congress we are considering. The term “reserve” or “reserves” has a special meaning in the law of insurance. While its scope" } ]

[ { "docid": "22311349", "title": "", "text": "than in cash; and with certain exceptions which have no present bearing, it defines, “employment” to mean any service of whatever nature performed in the United States by an employee for his employer; section 808 authorizes the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, to make and publish rules and regulations for the enforcement of the title; and Article 3 of Regulation 91, promulgated under the statute, amplifies the definition of “employees” by providing that “the relationship * * * must * * * be the legal relationship of employer and employee. Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. * * * In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. An individual performing services as an independent contractor is not as to such services an employee.” The tax imposed upon an employer is denominated an excise tax, and it has been judicially determined and sustained as such a tax levied upon the privilege of establishing and maintaining the relationship of employer and employee. Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279, 109 A.L.R. 1293; Helvering v. Davis, 301 U.S. 619," }, { "docid": "20083726", "title": "", "text": "employee. Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services. In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. An individual performing services as an independent contractor is not as to such services an employee. “Generally, physicians, lawyers, dentists, veterinarians, contractors, subcontractors, public stenographers, auctioneers, and others who follow an independent trade, business, or profession, in which they offer their services to the public, are independent contractors and not employees. “Whether the relationship of employer and employee exists will in doubtful cases be determined upon an examination of the particular facts of each case. “If the relationship of employer and employee exists, the designation or description of the relationship by the parties as anything other than that of employer and employee is immaterial. Thus, if such relationship exists, it is of no consequence that the employee is designated as a partner, coadventurer, agent, or independent contractor.” Treasury Regulation 90, Article 205: “Art. 205. Employed individuals. — An individual is in the employ" }, { "docid": "3116575", "title": "", "text": "the Social Security Act, decided the cases of United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757; and Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947, therein setting forth broad general guidelines to courts and agencies. As a consequence of these decisions, the Treasury Department proposed a new regulation defining the employer-employee relationship on the basis of an economic reality test. This proposed regulation caused considerable criticism in Congress and led to enactment in June, 1948, of J. H. Resolution 296 (62 Stat. 438) over President Truman’s veto. The legislative history of this resolution makes it clear that the Congress meant to and did emphatically reject the economic reality test proposed by the Treasury Department but did lend its approval of the Supreme Court decisions as they were interpreted by the Senate Committee. Thereafter, amendments were enacted which redefined the term “employee.” These amendments have been carried over into the Revenue Code of 1954 as heretofore quoted. This common-law concept is described in the current Treasury Regulations on Employment Tax (1954) Code, Section 31.-3121(d) 1(c): “§ 31.3121(d)-l Who are employees. •X- -x- * -x- * # (c) Common law employees. (1) Every individual is an employee if under the usual common law rules the relationship between him and the person for whom he performs services is the legal relationship of employer and employee. (2) Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also" }, { "docid": "16395701", "title": "", "text": "26 CFE §403.204 (b), Generally such relationship [of employer and employee] exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. * * * [Emphasis supplied.] While the decision in United States v. Silke, 331 U. S. 704, heavily relied on by defendant, but cited by both parties, might indicate that a somewhat broader definition of employee should be adopted through the so-called “economic reality” test, it is significant that the common law definition was written into the statute by Congress for the first time in 1948, after the decision in the Sills case. The repudiation of the expansion of the common law rule proposed by the Treasury Department for determining the existence of the relationship of employer and employee was accomplished by adding to § 1607 (i) of the Internal Revenue Code, the words: but such term [employee] does not include (1) any individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an independent contractor or (2) any individual (except an officer of a corporation) who is not an employee under such common-law rules. In the present case the plaintiff had no right to control or direct the applicators as to the means or methods used by them in accomplishing the result. The plaintiff’s only concern was that the applicators accomplish a result in conformity with the terms of the contract with the owner of the structure to which the roofing or siding was being applied. In this way the plaintiff had no more control over the applicator than a house owner exerts over a house painter and it would be repugnant to the common law to consider the ordinary house painter anything other than" }, { "docid": "23594642", "title": "", "text": "of Title 20, Code of Federal Regulations, gives further guidance by defining “employee” in this language: “(2) Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it it not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services. In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. * * (Emphasis supplied.) From our review of the cases, it seems clear that the factor of control, if not determinative, is of considerable importance in applying common law standards, considered in conjunction with, and in addition to, other factors which may be present in each individual case. See Dimmitt-Rickhoff-Bayer Real Estate Co. v. Finnegan, 8 Cir., 179 F.2d 882, certiorari denied, 340 U.S. 823, 71 S.Ct. 57, 95 L.Ed. 605, and United States v. Kane, 8 Cir., 171 F.2d 54, where various factors were considered. With the foregoing controlling principles in mind, and in order to determine whether the Secretary’s findings are supported by substantial evidence, we turn to the pertinent facts, which were established from uncontroverted evidence in the form of documents, statements, letters and" }, { "docid": "20083725", "title": "", "text": "of the Secretary of the Treasury, issued regulations under both Titles VIII and IX, for the enforcement of the Act, which are pertinent here. The regulation under Title VIII is known as Treasury Regulation 91 and the pertinent section is Article 3, and the regulation under Title IX is known as Treasury Regulation 90 and the pertinent section is Article 205. After the repeal and' reenactment of the Act, these regulations were reissued without substantial difference, the new regulations being Treasury Regulations 106, the pertinent section being 402.204, and Treasury Regulation 107, the pertinent section being Section 403.204. These Treasury Regulations are as follows': Treasury Regulations 91, Article 3: “Art. 3. Who are employees. — Every individual is an employee within the meaning of Title VIII of the Act if he performs services in an employment as defined in section 811(b) (see article 2). “However, the relationship between the person for whom such services are performed and the individual who performs such services must as to those services be the legal relationship of employer and employee. Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services. In general, if an individual is subject to the control" }, { "docid": "18196721", "title": "", "text": "320 U. S. 467 at 473 prevents the plaintiff from recovering in this suit. The cases there cited were cases of attempts by taxpayers to deduct from income, as “ordinary and necessary” business expenditures, fines or penalties imposed on them for illegal activities, or payments made to buy political influence, or for improper kinds of lobbying. We think that the plaintiff’s violation of the Packers and Stockyards Act, which seems to have occurred, did not subject him to taxes levied under wholly different laws and having no special relation to the stockyard business. He either had eight employees or did not. If he did, he was taxable. If not, he was not subject to the taxes here in question, however reprehensible it may have been for him to deal through persons who were not his employees, and were not properly licensed as dealers. If he had listed them as employees, and paid the consequent taxes, that would not have relieved him of liability to the penalties for violating the Stockyards Act, if in fact the persons were not employees. We think that to impose these taxes as a penalty for the violation of another law, if they are not by their terms applicable, is not warranted. We reach at last the merits of the plaintiff’s claim for refund. The activities, on behalf of the plaintiff, of the three persons whose status as employees vel non gave rise to this suit, are described in findings 8-15 and will not be repeated here. Section 1426 (d) of the Internal Revenue Code, 26 U. S. C. 1426 (d) says: The term employees * * * does not include (1) any individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an independent contractor * * *. Treasury Regulation 90, promulgated under Title IX of the Social Security Act, 42 U. S. C. 1101-1110, says, of the employer-employee relation: Generally the relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as" }, { "docid": "15748438", "title": "", "text": "“Definitions. * * * (c) Employment. The term ‘employment’ means any service performed prior to January 1, 1940, which was employment as defined in this section prior to such date, and any service, of whatever nature, performed after December 31, 1939, within the United States by an employee for the person employing him, irrespective of the citizenship or residence of either, except [certain not pertinent exceptions]”. Treasury Regulation 107, Section 403.-204: “Who are employees. — Every individual is an employee if the relationship between him and the person for whom he performs services is the legal relationship of employer and employee. * * * “Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services. In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. An individual performing services as an independent contractor is not as to such services an employee. * * * “Whether the relationship of employer and employee exists will in doubtful cases be determined upon an examination of the particular facts" }, { "docid": "20632428", "title": "", "text": "to relevant criteria is found in the applicable Treasury regulation, which provides in pertinent part: (b) Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services. In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. An individual performing services as an independent contractor is not as to such services an employee * * *. (c) 'Whether the relationship of employer and employee exists will in doubtful cases be determined upon an examination of the particular facts of each case. (d) If the relationship of employer and employee exists, the designation or description of the relationship by the parties as anything other than that of employer and employee is immaterial. Thus, if such relationship exists, it is of no consequence that the employee is designated as a partner, coadventurer, agent, independent contractor or the like. [Treas. Beg. § 31.3306(i)-l(b)-(d) (1956).] The latter statute and interpreting regulation represent congressional disapproval of the so-called “economic reality” test as a primary tool to determine the presence or" }, { "docid": "8417109", "title": "", "text": "Stockyards Act, if in fact the persons were not employees. We think that to impose these taxes as a penalty for the violation of another law, if they are not by their terms applicable, is not warranted. We reach at last the merits of the plaintiff’s claim for refund. The activities, on behalf of the plaintiff, of the three persons whose status as employees vel non gave rise to this suit, are described in findings 8-15 and will not be repeated here. Section 1426(d) of the Internal Revenue Code, 26 U.S.C. § 1426(d) says: “The term ‘employee’ * * * does not include (1) any individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an independent contractor * * Treasury Regulation 90, promulgated under Title IX of the Social Security Act, 42 U.S.C.A. §§ 1101-1110, says, of the employer-employee relation: “Generally the relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means iby which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done.” The activities of the three persons, as described in the findings, seem to us to show that they were not employees. The Government offers us no reason for reaching a contrary conclusion. The plaintiff is entitled to recover $5,891.-36 with interest as provided by law. It is so ordered. JONES, Chief Judge, and HOWELL, WHITAKER and LITTLETON, Judges, concur." }, { "docid": "10518879", "title": "", "text": "leasing underground portions of mines obtains widely in the West. The custom is reputed to have been brought over by the excellent Cornish miners, and its pursuit by experienced men leads frequently to the accumulation of handsome profits. The typical leaser is the resourceful miner who prefers the speculative rewards, along with the risks, of operating on his own account. There was in the practice here no element of calculated tax avoidance. The taxpayer’s leasing program was inaugurated years before the Social Security Act was placed on the books. We entertain no doubt that these leasers should be classed as independent contractors. We are not unmindful of the beneficent purposes of the Act, but the extension of its benefits to wider fields is not the business of the courts. Affirmed. The taxes collected were for the years 1937, 1938, and 1939. Article 3 of Treasury Regulations 91, promulgated under Title VIII (identical with Article 205 of Treasury Regulations 90, promulgated under Title IX) is as follows: “Art. 3. Who are employees. — Every individual is an employee within the meaning of Title VIII of the Act if he performs services in an employment as defined in section 811 (b) (see article 2). “However, the relationship between the person for whom such services are performed and the individual who performs such services must as to those services be the legal relationship of employer and employee. Generally, such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the émployer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge" }, { "docid": "18196722", "title": "", "text": "persons were not employees. We think that to impose these taxes as a penalty for the violation of another law, if they are not by their terms applicable, is not warranted. We reach at last the merits of the plaintiff’s claim for refund. The activities, on behalf of the plaintiff, of the three persons whose status as employees vel non gave rise to this suit, are described in findings 8-15 and will not be repeated here. Section 1426 (d) of the Internal Revenue Code, 26 U. S. C. 1426 (d) says: The term employees * * * does not include (1) any individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an independent contractor * * *. Treasury Regulation 90, promulgated under Title IX of the Social Security Act, 42 U. S. C. 1101-1110, says, of the employer-employee relation: Generally the relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to 'be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. The activities of the three persons, as described in the findings, seem to us to show that they were not employees. The Government offers us no reason for reaching a contrary conclusion. The plaintiff is entitled to recover $5,891.36 with interest as provided by law. It is so ordered. Howell, Judge; Whitaker, Judge; Littleton, Judges and Jones, Chief Judge, concur." }, { "docid": "15748439", "title": "", "text": "be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services. In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. An individual performing services as an independent contractor is not as to such services an employee. * * * “Whether the relationship of employer and employee exists will in doubtful cases be determined upon an examination of the particular facts of each case. * * * ” Internal Revenue Code, § 1426 (b), 26 U.S.C.A. Int.Rev.Code, § 1426 (b), Federal Insurance Contributions Act, and Treasury Regulation 106, § 402.204 under it, for all present purposes, define “employment” identically with the above. The requirement of deductions to be made by the employer from the employees’ wages under the Federal Insurance Contributions Act, however, sheds significant light on the problem herein. It has been stated by the Circuit Court of Appeals for this Circuit that the statutory definition does not enlarge the meaning of “employment” beyond that of the common law definition. Texas Co. v. Higgins, D.C., 32 F.Supp. 428, affirmed, 2 Cir., 118 F.2d 636, 638; Radio City Music Hall Corp. v. United States, 2 Cir., 135 F. 2d 715, 717. In the latter case the opinion by Judge Hand states: “We accept Article 3 of Regulations 91 [now Sec. 403.204 of Regulation 107] as an authoritative definition of the distinction between an ‘employee’ and an ‘independent contractor’; it is really no more than a gloss" }, { "docid": "23692161", "title": "", "text": "stressed the degree of the employer’s control over the employee’s work as central to the Committee’s understanding of the common-law tests of employment. The Senate Report quoted with approval the then-existing regulation, substantially identical to the one now in effect, which stated: “Every individual is an employee if the relationship between him and the person for whom he performs services is the legal relationship of employer and employee. “Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done.” S. Rep. No. 1255, supra, at 3. Respondents argue that this language indicates a congressional intent that, where the maritime nature of a vocation makes impracticable the degree of control generally exercised by land-based employers over their employees, the land-based standards must nevertheless be applied, with the result that no “employment\" exists for the purposes of those statutes. Ill We do not think Congress intended the anomalous result of having maritime activities subject to standards, for social security tax purposes, other than those that are relevant to seafaring enterprises. Such a result is not necessary to accomplish the dual concerns underlying the 1948 amendment. Application of maritime standards to determine the status of members of fishing ventures will not open brand new areas of social security coverage. To the contrary, the employee status of captains and crewmen engaged in fishing operations similar to these is supported by a Treasury Department interpretation, applying maritime standards, that was issued in 1940, immediately after maritime employees were first brought within the coverage of the Social Security Act by amendment in 1939. S. S. T. 387, 1940-1 Cum. Bull. 192; see Social Security Act Amendments of 1939, §§ 606, 614, 53 Stat, 1383, 1392, as amended, 26" }, { "docid": "22399394", "title": "", "text": "the question whether a loss of that character or any other specific disability constitutes total permanent disability is left to be determined as matter of fact. The vice of the regulation, therefore, is that it assumes to convert what in the view of the statute is a question of fact requiring proof into a conclusive presumption which dispenses with proof and precludes dispute. This is beyond administrative power. The only authority conferred, or which could be conferred, by the statute is to make regulations to carry out the purposes of the act—not to amend it. United States v. 200 Barrels of Whiskey, 95 U. S. 571, 576; Morrill v. Jones, 106 U. S. 466, 467; United States v. Grimaud, 220 U. S. 506, 517; Campbell v. Galeno Chemical Co., 281 U. S. 599, 610. Third. The burden was on petitioner not only to show the character and extent of his injury, but also to show that the result of the injury was to disable him permanently from following any substantially gainful occupation. Proechel v. United States, 59 F. (2d) 648, 652; United States v. McCreary, 61 F. (2d) 804, 808. Petitioner lost his right arm; and the proof shows that he had been right-handed. Before the injury he was a practical engineer operating a surveying instrument; but with the loss of his right arm he could not operate such an instrument. In 1919 he obtained employment in a packing house, but found himself unable to retain the employment because it necessitated lifting heavy quarters of meat which he could not do with one arm. He was also unable to take orders for the house because he could not hold the receiver of the telephone and write orders at the same time. After three weeks, he was obliged to give up this employment. From time to time, he obtained other work which involved the use of both hands and which he was obliged to abandon. On the other hand, it appears that he worked for twenty-two months in the business of selling stocks on commission, and for a few months in" }, { "docid": "23561517", "title": "", "text": "of whether individuals are “employees” for the purpose of federal employment taxes depends upon the totality of their circumstances. No single consideration governs. The district court found that one such consideration, the impermanence of the relationship, weighed toward “independent contractor”. But it failed to consider the various other factors, factors due at least equivalent weight, which tend to indicate that shuttlers are. employees. The judgment of the District Court is reversed. The cause is remanded for a determination of the amount of Avis’s tax liability. . Treasury Regulations promulgated under Section 3121 interpret “employee” as follows : “(c) Common law employees. (1) Every individual is an employee if under the usual common law rules the relationship between him and the person for whom he performs services is the legal relationship of employer and employee. “(2) Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services. In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. An individual performing services as an independent contractor is" }, { "docid": "22399393", "title": "", "text": "to that effect unequivocally appears. Twenty per Cent. Cases, 20 Wall. 179, 187; Chew Heong v. United States, 112 U. S. 536, 559; Fullerton-Krueger Co. v. Northern Pacific Ry. Co., 266 U. S. 435, 437. The principle is strictly applicable to statutes which have the effect of creating an obligation. An administrative regulation is subject to the rule equally with a statute; and accordingly, the regulation here involved must be taken to operate prospectively only. It is invalid because not within the authority conferred by the statute upon the Director (or his successor, the Administrator) to make regulations to carry out the purposes of the act. It is not, in the sense of the statute, a regulation at all, but legislation. The effect of the statute in force at the time of the adoption of the so-called regulation is that in respect 'of compensation allowances, loss of a hand and an eye shall be deemed total permanent dis ability as a matter of law. There being no such provision with respect to cases of insurance, the question whether a loss of that character or any other specific disability constitutes total permanent disability is left to be determined as matter of fact. The vice of the regulation, therefore, is that it assumes to convert what in the view of the statute is a question of fact requiring proof into a conclusive presumption which dispenses with proof and precludes dispute. This is beyond administrative power. The only authority conferred, or which could be conferred, by the statute is to make regulations to carry out the purposes of the act—not to amend it. United States v. 200 Barrels of Whiskey, 95 U. S. 571, 576; Morrill v. Jones, 106 U. S. 466, 467; United States v. Grimaud, 220 U. S. 506, 517; Campbell v. Galeno Chemical Co., 281 U. S. 599, 610. Third. The burden was on petitioner not only to show the character and extent of his injury, but also to show that the result of the injury was to disable him permanently from following any substantially gainful occupation. Proechel v. United" }, { "docid": "16395700", "title": "", "text": "act or whether he is an independent contractor, thus making the act inapplicable. While the question of the existence of an employer-employee relationship must be decided on the basis of all the factors involved, Bartels v. Birmingham, 382 U. S. 126, 130; Metropolitan Roofing & Modernizing Company v. United States, 125 F. Supp. 670; Jagolinzer v. United States, 150 F. Supp. 489, the generally accepted and fundamental test is whether there exists, on the part of the employer, control or a right to control the activities of the alleged employee not only as to the result to be accomplished, but also as to the manner and method of attaining the result. De-Raef Corporation v. United States, 108 C. Cls. 255, 266; Radio City Music Hall Corp. v. United States, 135 F. 2d 715; Party Cab Co. v. United States, 172 F. 2d 87; National Labor Relations Board v. Nu-Car Carriers, 189 F. 2d 756. Restatement of the Law of Agency, §§2(3) and 220. The same test is adopted in the applicable Treasury Regulations which provide, 26 CFE §403.204 (b), Generally such relationship [of employer and employee] exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. * * * [Emphasis supplied.] While the decision in United States v. Silke, 331 U. S. 704, heavily relied on by defendant, but cited by both parties, might indicate that a somewhat broader definition of employee should be adopted through the so-called “economic reality” test, it is significant that the common law definition was written into the statute by Congress for the first time in 1948, after the decision in the Sills case. The repudiation of the expansion of the common law rule proposed by the Treasury Department" }, { "docid": "15761424", "title": "", "text": "In accordance with Brown, supra, we reversed the Board’s decision because under the applicable law “we are able to determine that the lessees in this case were independent contractors . . . .” ,195 U.S.App.D.C. at -, 603 F.2d at 882. Petitioners assert that the list of thirteen factors included in the Board’s opinion provides reasonable and substantial support for the Board’s determination. Those thirteen factors are support for the Board’s decision, however, only if they are evidence that the Companies have a “right to control . the means to be used in attaining the result. . . [W]here the employer has reserved only the right to control the ends to be achieved, an independent contractor relationship exists.” Yellow Cab Co., 229 NLRB 1329, 1332. See 195 U.S. App.D.C. at -, 603 F.2d at 874. Party Cab Co. v. United States, 172 F.2d 87 (7th Cir. 1949), also sets forth a good statement of the applicable law. At issue in that case was the status of lessee cab drivers under the taxing provisions of the Social Security Act, which taxed “employees”. The Court quoted an excerpt from the applicable Treasury regulation which set forth the general standards to be followed in determining whether individuals were independent contractors or employees: [Generally the [employee] relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. * * * In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor, not an employee. 172 F.2d at 92. (Emphasis added). This is the well recognized common law" }, { "docid": "22648279", "title": "", "text": "for acts of his servants.” This is often referred to as power of control, whether exercised or not, over the manner of performing service to the industry. Restatement of the Law, Agency, § 220. We approved the statement of the National Labor Relations Board that “the primary consideration in the determination of the applicability of the statutory definition is whether effectu-ation of the declared policy and purposes of the Act comprehend securing to the individual the rights guaranteed and protection afforded by the Act.” Labor Board v. Hearst Publications, 322 U. S. 111, 120, 123, 124, 128, 129, 131. Application of the social security legislation should follow the same rule that we applied to the National Labor Relations Act in the Hearst case. This, of course, does not leave courts free to determine the employer-employee relationship without regard to the provisions of the Act. The taxpayer must be an “employer” and the man who receives wages an “employee.” There is no indication that Congress intended to change normal business relationships through which one business organization obtained the services of another to perform a portion of production or distribution. Few businesses are so completely integrated that they can themselves produce the raw material, manufacture and distribute the finished product to the ultimate consumer without assistance from independent contractors. The Social Security Act was drawn with this industrial situation as a part of the surroundings in which it was to be enforced. Where a part of an industrial process is in the hands of independent contractors, they are the ones who should pay the social security taxes. The long-standing regulations of the Treasury and the Federal Security Agency (H. Doc. 595, 79th Cong., 2d Sess.) recognize that independent contractors exist under the Act. The pertinent portions are set out in the margin. Certainly the industry’s right to control how “work shall be done” is a factor in the determination of whether the worker is an employee or independent contractor. The Government points out that the regulations were construed by the Commissioner of Internal Revenue to cover the circumstances here presented. This is" } ]

[ { "docid": "2219238", "title": "", "text": "considered the motion for summary judgment since he has had occasion to pursue the matter at a later stage and in greater depth than the two judges who preceded him. Remanded for further proceedings consistent with this opinion. . The district court has announced good results from its first quarter of operations with the individual assignment system that it adopted on an experimental basis for criminal cases, effective October 1, 1969. . This order, issued June 30, 1967, directed Gordon to file an answer within 20 days. A document, captioned Answer, was timely filed but all defendant did was refuse to admit or deny any averments of the complaint on the ground that an admission or denial could subject defendant to self-incrimination. . In the case at bar, too, the civil and criminal actions are both directed against the same individual, while in Kordel the civil action involved the corporation and the criminal action involved the individual. Thus the Court in Kordel was able to avoid the more direct conflict of rights found in this case. . Without committing itself on the latter situation, the Court added “For present purposes we may assume that in such a case the appropriate remedy would be a protective order under Rule 30(b), postponing civil discovery until termination of the criminal action.” 397 U.S. at 9, 90 S.Ct. at 768. . Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962), cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963). . The judge commented that defendant had made no effort to obtain review of the outstanding order, being unaware that lie had requested without success that the district judge make a certification under 28 Ü.S.C. § 1292(b). . Syracuse Broadcasting Corp. v. New-house, 271 F.2d 910, 914 (2d Cir. 1959); cf. Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962), cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963). . At argument before us, counsel for appellant referred to the possibility of a defense based, if we understand the point correctly, on lack of consideration, in failing to obtain" } ]

[ { "docid": "23151386", "title": "", "text": "Tobacco Co., 880 F.2d 1520, 1530 (2d Cir.1989). This standard applies where the requested order has been denied as well as when it has been granted. See Penthouse Int'l, Ltd. v. Playboy Enterprises, 663 F.2d 371, 391 (2d Cir.1981). “Where ... the [discovery is] relevant, the burden is upon the party seeking non-disclosure or a protective order to show good cause.” Id. (citations omitted). Dove does not argue that the discovery Atlantic seeks is not relevant to Atlantic’s affirmative defenses. Therefore, he must show that the district court abused its discretion by finding that he had not demonstrated sufficient good cause to justify a protective order. Some courts have held that unequal discovery rights in related litigation may justify a protective order or other device designed to prevent abuse of the liberal discovery rules available in federal court. See, e.g., Snap Lite Corp. v. Stewart Warner Corp., 40 F.Supp. 776, 776 (S.D.N.Y.1941) (federal action initiated to obtain discovery for use in state court); Campbell v. Eastland, 307 F.2d 478, 480, 483 (5th Cir.1962) (federal civil action initiated as tactic to enable plaintiff to gain otherwise unavailable information on criminal case), cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963). In each such case the federal action had been brought chiefly for the purpose of exploiting the liberal discovery devices available in federal civil actions. If the district court had found that the affirmative defense in the instant action was interposed for the sole purpose of obtaining information through discovery for use in the UK litigation, it would have been justified in issuing the protective order Dove requested. See, e.g., Empire Liquor Corp. v. Gibson Distilling, 2 F.R.D. 247, 248 (S.D.N.Y.1941). However, where the discovery sought is relevant to a good faith defense in the federal case, the mere fact that it may be used in other litigation does not mandate a protective order. See Cipollone v. Liggett Group, 113 F.R.D. 86, 91 (D.N.J.1986) (“So long as the initial litigation has not itself been instituted in bad faith for the purpose of obtaining documents for other actions, and" }, { "docid": "22075360", "title": "", "text": "prosecution’s ease in a manner not otherwise permitted. These problems are not uncommon when criminal and civil forfeiture suits are pending at the same time, but they are made acute by Degen’s absence. If he were in federal custody, the risk of compromising the criminal case could be avoided by staying the civil suit until the prosecution is over. 21 U. S. C. § 881(i). Cf. United States v. Kordel, 397 U. S. 1, 9 (1970). Degen rendered this solution impractical by frustrating the prosecution of the criminal case against him. The criminal trial cannot begin until he returns, Crosby v. United States, 506 U. S. 255 (1993); if the civil matter were subordinated to the criminal, the forfeiture could be held in abeyance for an indefinite time. This delay would be prejudicial to the Government, for if its forfeiture claims are good, its right to the properties is immediate. We nonetheless are satisfied the District Court has the means to resolve these dilemmas without resorting to a rule forbidding all participation by the absent claimant. First, the District Court has its usual authority to manage discovery in a civil suit, including the power to enter protective orders limiting discovery as the interests of justice require. Fed. Rule Civ. Proc. 26(c). Decisions in the Courts of Appeals have sustained protective orders to prevent parties from using civil discovery to evade restrictions on discovery in criminal cases. See, e. g., In re Ramu Corp., 903 F. 2d 312, 316-317, 320-321 (CA5 1990); United States v. Stewart, 872 F. 2d 957, 962-963 (CA10 1989); Campbell v. Eastland, supra, at 487. See also Capital Engineering & Mfg. Co., Inc. v. Weinberger, 695 F. Supp. 36, 41-42 (DC 1988); Founding Church of Scientology v. Kelley, 77 F. R. D. 378, 380-381 (DC 1977). Second, the court can exercise its discretion to manage the civil litigation to avoid interference with the criminal case. If, for instance, the Government were unable to rebut De-gen’s arguments except by revealing confidential details of the criminal investigation, the court could consider controlling or limiting the form of proof, or" }, { "docid": "23144723", "title": "", "text": "an antitrust case. But there is no constitutional requirement that this be done, and in the same case some of the limitations which the district court placed upon discovery were found to be an .abuse of discretion. Texaco, Inc. v. Borda, supra, at 608. In United States v. American Radiator & Standard San. Corp., 388 F.2d 201, 204 (3 Cir. 1967), cert. denied, 390 U.S. 922, 88 S.Ct. 857, 19 L.Ed.2d 983 (1968), this court said, with respect to a contention similar to that advanced here: On the merits, we know of no rule or equitable principle that protects a defendant in a pending criminal prosecution from the disclosure, by another person in a separate civil action, of evidence which may later become part of the prosecution’s case against him. See also Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 52, 33 S.Ct. 9, 57 L.Ed. 107 (1912). Cases such as Campbell v. Eastland, 307 F.2d 478 (5 Cir. 1962), cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963), staying civil discovery against the government until the disposition of the criminal case, are not relevant. They rest on the policy of preventing defendants in criminal cases from using civil process to obtain information from the government’s file which would in the criminal case be privileged. That discretionary rule lends no support to plaintiff’s constitutional contentions. While historically, and perhaps unfortunately, pretrial discovery in criminal cases has been limited, there is no absolute rule of constitutional law prohibiting it, even in the pending action. See, e.g., Fed.R.Crim.P. 16(c); New Jersey Rules Governing Criminal Practice, Rule 3:11-1 (Notice of Alibi), Rule 3:12 (Notice of Defense of Insanity), Rule 3:13-3(d) (Discovery by State); Rider v. Crouse, 357 F.2d 317, 318 (10 Cir. 1966); Jones v. Superior Court of Nevada County, 58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919 (1962); State v. Angeleri, 51 N.J. 382, cert. denied, 393 U.S. 951, 89 S.Ct. 372, 21 L.Ed.2d 362, 241 A.2d 3, 96 A.L.R.2d 1213 (1968). We find no violation of the defendant’s Fifth, Sixth or Fourteenth Amendment rights from" }, { "docid": "15751409", "title": "", "text": "the United States Constitution.” Complaint p. 3. It is clear that this case is civil in nature and therefore the scope of discovery is controlled by the Federal Rules of Civil Procedure. The Court is aware that in certain circumstances a court should not isolate the discovery motion in a civil suit from outstanding criminal matters. With this in mind, defendánts have cited to the Court several decisions which stand for the general proposition that a defendant in a criminal case should not be permitted to utilize the more liberal rules of civil procedure to avoid their rather limited counterparts in the criminal area. E. g. Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962); United States v. One 1964 Cadillac Coupe DeVille, 41 F.R.D. 352 (S.D.N.Y.1966). This Court is in complete accord with this proposition. However, we find that the general rule, and the cases cited by the defendants are inapposite. The cases relied on by defendants involve situations where the criminal defendant was the party seeking information through the civil discovery procedure. For example, in the Eastland case cited above, the court was faced with an involved proceeding where the defendant in a criminal tax fraud case was, at the same time, suing the Government for a tax refund. The district court denied the Government’s motion to stay the civil proceeding until the criminal trial was completed and ruled that the civil action was entirely independent and permitted the civil plaintiff-criminal defendant to inspect the records of the Internal Revenue’s agents which were in the United States Attorney’s criminal file. The court of appeals reversed, stating that “a litigant should not be allowed to make use of the liberal discovery procedures applicable to a civil suit as a dodge to avoid the restrictions of criminal discovery and thereby obtain documents he would not otherwise be entitled to for use in his criminal suit.” Campbell v. Eastland, supra, 307 F.2d at 487 (emphasis added). However, in the instant case the plaintiffs are not criminal defendants in a related criminal proceeding and therefore clearly are not attempting to use the" }, { "docid": "13202200", "title": "", "text": "the relevant records “are compiled for law enforcement purposes” — can stand alone as a justification for the broader interpretation of the claimed exemption. The court need not decide what, if any, authority it has to determine whether this would provide a legally sufficient basis for the claimed exemption, since the Government’s interpretation is inconsistent with the fact that it falls under the regulation’s general heading: “limited access.” It is far more likely, and the court finds, that the Justice Department intended to exempt itself from subsection (g) only to the extent that it had already exempted itself from the stated access provisions. Therefore, even if it had assumed that it had the power to do so, the Justice Department did not enact regulations that would immunize it from this lawsuit. II. Motion to Stay The Government’s motion to stay is based on concerns about the possible effects of discovery on the integrity of the related grand jury investigation. Some of these concerns would appear to be justifiable if plaintiffs insisted on pursuing the fairly wide net that they have indicated they intend to cast in discovery, see Def. Mem. at 14. Plaintiffs have also indicated that they are willing to narrow discovery to address those concerns, see PI. Mem. at 20-21, however, and the court believes that an appropriately limited process will not interfere with the related criminal proceedings. Courts are often requested to limit civil proceedings arising out of the same or related transactions as those involved in a pending criminal proceeding. See, e.g., United States v. One 1964 Cadillac Coupe DeVille, 41 F.R.D. 352, 353 (S.D.N.Y.1966); see also Founding Church of Scientology v. Kelley, 77 F.R.D. 378, 380 n. 4 (D.D.C. 1977) (limiting civil discovery during grand jury investigation). When the Government requests such a stay, it is usually because of concerns that (1) the broad disclosure of the essentials of the prosecution’s case may lead to perjury and manufactured evidence; (2) the revelation of the identity of prospective witnesses may create the opportunity for intimidation; and (3) the criminal defendants may unfairly surprise the prosecution at" }, { "docid": "13202202", "title": "", "text": "trial with information developed through discovery, while the self-incrimination privilege would effectively block any attempts by the Government to discover relevant evidence from the defendants. See Founding Church of Scientology, 77 F.R.D. at 381. The determination of how best to address these considerations is within the discretion of the court and should be made in light of the particular circumstances of each case. Securities & Exchange Comm’n v. Dresser Industries, 628 F.2d 1368, 1375 (D.C.Cir.) (en banc), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980). Nevertheless, the Government is not entitled to any particular type of relief; the court may elect to stay the civil proceedings in their entirety, postpone discovery or impose appropriate protective orders and conditions. Id. In this case, the possible areas of investigation may be divided into two categories: those events occurring before the Marcia-nos propounded their discovery requests and those occurring thereafter. Based upon a review of the in camera submissions, the court has determined that the grand jury’s investigation has no relation to the events in the latter category, so that plaintiffs could discover, for example, the process by which the Government interpreted the discovery documents and orders and the circumstances surrounding the actual inspection and disclosure of the seized documents. Therefore, it may proceed in these limited areas without posing any threat to the grand jury investigation. See Texaco, Inc. v. Borda, 383 F.2d 607, 608-10 (3d Cir.1967) (staying discovery except for deposition of one individual). The court recognizes that some witnesses with knowledge of properly discoverable facts may also have knowledge of facts pertaining to the criminal investigation that should not be revealed. Moreover, there may be instances in which the mere act of asserting the right not to answer certain questions may be revealing in and of itself. Nevertheless, based on the information presently before the court it appears that such concerns may be addressed with appropriate limiting orders. In any event, almost all of the relevant facts are undisputed, which should obviate the need for very extensive discovery. III. Request for Sanctions In a tactic becoming" }, { "docid": "12088084", "title": "", "text": "that the protective order does not in any way limit the defendant’s right to attempt to interview any witness in a criminal case.” Even assuming that the TRO could somehow be interpreted as prohibiting any attempt at interviewing witnesses, as the defendant suggests, the defendant had ample time after the TRO was dissolved to contact any potential witnesses. The trial did not begin until November 9, 1987, nearly two weeks after the TRO was dissolved. The defendant does not even suggest that some witness was willing to discuss the case with him but was unable to because of the TRO. Given these circumstances, the defendant has failed to demonstrate any prejudice arising from the TRO. The defendant also contends that the trial court was without power to issue the protective order staying discovery in the civil case. While we need not decide this issue, we note that in appropriate circumstances, the district court has authority under Rule 16(d) to prevent the parties from abusing discovery procedures, includ ing attempts to avoid the limitations on criminal discovery through the use of civil discovery provisions. See e.g., Securities & Exchange Commission v. Dresser Industries, 628 F.2d 1368, 1373 (D.C.Cir.1980); Campbell v. Eastland, 307 F.2d 478 (5th Cir.1962) cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963). See also United States v. Tison, 780 F.2d 1569 (11th Cir.1986). It is sufficient for our purposes, however, to state that the protective order did not affect the rights of the defendant in this criminal action. We have examined appellant’s remaining arguments and find them to be without merit. The judgment and convictions are AFFIRMED. . For the sake of simplicity, we discuss appellant’s claim only as it relates to the mail fraud statute. Our analysis is equally applicable, however, to the nearly identical wire fraud statute, 18 U.S.C. § 1343. . We note that Congress, in an apparent effort to overcome the McNally decision, has now stated that a scheme or artifice to defraud includes \"a scheme or artifice to deprive another of the intangible right to honest service.” (18 U.S.C.A. §" }, { "docid": "22075361", "title": "", "text": "claimant. First, the District Court has its usual authority to manage discovery in a civil suit, including the power to enter protective orders limiting discovery as the interests of justice require. Fed. Rule Civ. Proc. 26(c). Decisions in the Courts of Appeals have sustained protective orders to prevent parties from using civil discovery to evade restrictions on discovery in criminal cases. See, e. g., In re Ramu Corp., 903 F. 2d 312, 316-317, 320-321 (CA5 1990); United States v. Stewart, 872 F. 2d 957, 962-963 (CA10 1989); Campbell v. Eastland, supra, at 487. See also Capital Engineering & Mfg. Co., Inc. v. Weinberger, 695 F. Supp. 36, 41-42 (DC 1988); Founding Church of Scientology v. Kelley, 77 F. R. D. 378, 380-381 (DC 1977). Second, the court can exercise its discretion to manage the civil litigation to avoid interference with the criminal case. If, for instance, the Government were unable to rebut De-gen’s arguments except by revealing confidential details of the criminal investigation, the court could consider controlling or limiting the form of proof, or in an extreme case even the theories it permits the absent party to pursue, to prevent him from exploiting the asymmetries he creates by participating in one suit but not the other. Third, of course, Degen’s absence entitles him to no advantage. If his unwillingness to appear in person results in noncompliance with a legitimate order of the court respecting pleading, discovery, the presentation of evidence, or other matters, he will be exposed to the same sanctions as any other uncooperative party. A federal court has at its disposal an array of means to enforce its orders, including dismissal in an appropriate case. Again, its powers include those furnished by federal rule, see, e. g., Fed. Rules Civ. Proc. 37, 41(b); National Hockey League v. Metropolitan Hockey Club, Inc., 427 U. S. 639 (1976) (per curiam); Societe Internationale pour Participations Industrielles et Commerciales, S. A. v. Rogers, 357 U. S. 197, 212 (1958); cf. United States v. Pole No. 3172, 852 F. 2d 636, 641-642 (CA1 1988), and by inherent authority, see, e.g., Chambers v." }, { "docid": "23684574", "title": "", "text": "adjust to the needs of both litigations. But broad discovery at this time is likely to spread thin the time of certain key individuals in each of the defendant corporations who, besides conducting their normal managerial responsibilities, must at this time be preoccupied with providing essential information to those attempting to mount a defense to the criminal charges. It is the nature of their positions that these persons will also be the principal conduits of infor mation by which the corporations will be able to respond to civil discovery. Defendants also appear to be concerned that materials unearthed during civil discovery may eventually inure to the benefit of the Government in the prosecution of the criminal action. This concern is of doubtful relevance to the civil proceedings. Of course, plaintiffs have no right to use civil discovery as a pretext for gathering information useful for the criminal cases, any more than defendants do. Cf. Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962), cert, denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963) (staying civil discovery against Government, to prevent defendants in criminal cases from using civil process to discover Government’s criminal case). But as Judge Hastie observed, there is no rule or equitable principle [that we know of] that protects a defendant in a pending criminal prosecution from the disclosure, by another person in a separate civil action, of evidence which may later become a part of the prosecution’s case against him. United States v. American Radiator & Standard Sanitary Corp., 388 F.2d 201, 204 (3d Cir. 1969). While any action which delays discovery in the civil case might have the incidental effect of limiting the Government’s fortuitous access to information arguably relevant in the criminal case, this is not a factor which should or will influence the decision whether to grant a stay. See also DeVita v. Sills, 422 F.2d 1172-81 (3d Cir. 1970). (3) The burden on the court As noted earlier, the question with which we are here concerned is tied most directly to the court’s responsibility “to control the disposition of the cases" }, { "docid": "19220029", "title": "", "text": "The gravamen of plaintiffs’ complaint is that the Federal and Bank defendants have harassed and pressured contributors to the plaintiffs to recant those contributions and claim that the contributors were defrauded. This activity by the Federal and Bank defendants is alleged to have been precipitated by a news piece run by a local National Broadcasting Company affiliate concerning unauthorized credit card charges involving the plaintiffs. The Federal defendants have informed the Court that there is an on-going criminal investigation of plaintiffs which involves the improper use of credit card transactions. Thus, the Federal defendants brought the instant motion to protect that investigation. The Bank defendants also have brought similar motions due to the pendency of the criminal investigation. Plaintiffs oppose the motions on several grounds. First, plaintiffs contend that the present civil case is distinct and separate from the criminal investigation. Next, plaintiffs contend that no discovery requests have been served on the Federal defendants so that the relief requested is inappropriate and overbroad. Finally, plaintiffs assert that the Bank defendants should not be allowed to avoid discovery by asserting the pendency of a separate criminal investigation. The Court begins with the general proposition that the broad rules of civil discovery cannot be used to circumvent the more restrictive rules of criminal discovery. See, United States v. Mellon Bank, 545 F.2d 869, 873 (3rd Cir.1976); McSurely v. McClellan, 426 F.2d 664, 671-72 (D.C.Cir.1970); Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir.1962) cert. denied 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963). See also Founding Church of Scientology v. Kelley, 77 F.R.D. 378, 380 (D.D.C.1977) (“It is well-established that a litigant should not be allowed to make use of the liberal [civil] discovery procedures ... to avoid the restrictions on criminal discovery.”) This principle applies whether or not the litigant is actually a defendant in the parallel criminal case. Founding Church of Scientology, 77 F.R.D. at 380 fn. 4. However, the Court is cognizant of the restrictions on the principle: “[s]uch a privilege is not of unlimited duration, but ceases after a reasonable time.” Kinoy v. Mitchell, 67" }, { "docid": "2912899", "title": "", "text": "burden of proof and the burden of coming forward witli evidence on the matter. . Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). . Cf. Townsend v. Bomar, 351 F.2d 499, 501-502 (6th Cir. 1965); Roberts v. United States, 325 F.2d 290, 292 (5th Cir. 1963). . Landis v. North American Co., 299 U.S. 248, 255, 57 S.Ct. 163, 166, 81 L.Ed. 153 (1936). . Id. . Id. at 257, 57 S.Ct. at 167. There is undoubted appellate jurisdiction to review the grant of an indefinite stay in a civil proceeding. See, e. g., Government & Civic Employees Organizing Committee v. Windsor, 347 U.S. 901, 74 S.Ct. 429, 98 L.Ed. 1061 (1954), affirming 116 F.Supp. 354 (N.D.Ala.1953); Landis, supra. . United States v. Parrott, 248 F.Supp. 196, 199-202 (D.D.C.1965) (Gasch, J.). . Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir. 1962), cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963). . Just as we have considered it inappropriate, for purposes of deciding whether equitable relief should be granted against the criminal prosecutions, to speculate about the possibility that the trial judge in the criminal case will err, the writer of this opinion would likewise state that in his view, no such speculation is permissible for the purpose of deciding whether civil discovery should be postponed. And of course, unless there is error the criminal cases will be disposed of by a single trial. . It is appropriate for the District Court to consider whether there may be means less drastic than complete denial of discovery (and the consequent perpetuation of testimony) in the civil case which will assure furtherance of justice in that case without undercutting the reasons underlying the limitation of discovery in the interrelated criminal case, i. e., the possible need for precaution against perjury or intimidation of witnesses, and the principle of mutuality of discovery. . Although the majority appears to base its finding of jurisdiction on the theory that substantial rights will be irreparably lost if not determined before the criminal trial takes place, such a" }, { "docid": "23151387", "title": "", "text": "action initiated as tactic to enable plaintiff to gain otherwise unavailable information on criminal case), cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963). In each such case the federal action had been brought chiefly for the purpose of exploiting the liberal discovery devices available in federal civil actions. If the district court had found that the affirmative defense in the instant action was interposed for the sole purpose of obtaining information through discovery for use in the UK litigation, it would have been justified in issuing the protective order Dove requested. See, e.g., Empire Liquor Corp. v. Gibson Distilling, 2 F.R.D. 247, 248 (S.D.N.Y.1941). However, where the discovery sought is relevant to a good faith defense in the federal case, the mere fact that it may be used in other litigation does not mandate a protective order. See Cipollone v. Liggett Group, 113 F.R.D. 86, 91 (D.N.J.1986) (“So long as the initial litigation has not itself been instituted in bad faith for the purpose of obtaining documents for other actions, and so long as the interests of those represented in the initial litigation are being fully and ethically prosecuted, the Federal Rules do not foreclose the collaborative use of discovery.”), mandamus denied, 822 F.2d 335 (3d Cir.), cert. denied, 484 U.S. 976, 108 S.Ct. 487, 98 L.Ed.2d 485 (1987). In the instant case Atlantic did not institute this litigation. It merely asserted an affirmative defense of illegality in response to the action for collection of the debt. Dove, as an individual involved in the initial transaction by which the debt was incurred, may possess information relevant to that defense or information reasonably calculated to lead to the discovery of such evidence. Dove does not dispute this. Dove has pointed to nothing in the record from which we could conclude that the district court abused its discretion in finding that Dove had not shown good cause for a protective order. The timing of the assertion of the defense and the relation of the discovery sought to the UK litigation in some circumstances might raise an inference of" }, { "docid": "13202201", "title": "", "text": "wide net that they have indicated they intend to cast in discovery, see Def. Mem. at 14. Plaintiffs have also indicated that they are willing to narrow discovery to address those concerns, see PI. Mem. at 20-21, however, and the court believes that an appropriately limited process will not interfere with the related criminal proceedings. Courts are often requested to limit civil proceedings arising out of the same or related transactions as those involved in a pending criminal proceeding. See, e.g., United States v. One 1964 Cadillac Coupe DeVille, 41 F.R.D. 352, 353 (S.D.N.Y.1966); see also Founding Church of Scientology v. Kelley, 77 F.R.D. 378, 380 n. 4 (D.D.C. 1977) (limiting civil discovery during grand jury investigation). When the Government requests such a stay, it is usually because of concerns that (1) the broad disclosure of the essentials of the prosecution’s case may lead to perjury and manufactured evidence; (2) the revelation of the identity of prospective witnesses may create the opportunity for intimidation; and (3) the criminal defendants may unfairly surprise the prosecution at trial with information developed through discovery, while the self-incrimination privilege would effectively block any attempts by the Government to discover relevant evidence from the defendants. See Founding Church of Scientology, 77 F.R.D. at 381. The determination of how best to address these considerations is within the discretion of the court and should be made in light of the particular circumstances of each case. Securities & Exchange Comm’n v. Dresser Industries, 628 F.2d 1368, 1375 (D.C.Cir.) (en banc), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980). Nevertheless, the Government is not entitled to any particular type of relief; the court may elect to stay the civil proceedings in their entirety, postpone discovery or impose appropriate protective orders and conditions. Id. In this case, the possible areas of investigation may be divided into two categories: those events occurring before the Marcia-nos propounded their discovery requests and those occurring thereafter. Based upon a review of the in camera submissions, the court has determined that the grand jury’s investigation has no relation to the events" }, { "docid": "13326176", "title": "", "text": "fairness as that principle is embodied in the Federal Constitution. The constitutional status of the right of a criminal defendant to depose witnesses was settled, at least in this Circuit, in United States v. Hancock, 441 F.2d 1285, 1286-1287 (5th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 81, 30 L.Ed.2d 63 (1971), where Chief Judge Brown wrote: Initially Hancock [the defendant] alleges error of constitutional dimensions by asserting that the Trial Court’s denial of his motions for a list of government witnesses and a discovery order for the purpose of taking their depositions violated his rights under the Fifth and Sixth Amendments. . . . [W]ith the scope of discovery in criminal prosecutions narrower than it is in civil cases, Campbell v. Eastland, 5 Cir., 1962, 307 F.2d 478, 487, cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502, and in the absence of a rule which permits the taking of depositions of witnesses who will appear at the trial of a criminal case, we cannot say at this juncture that such a procedure has yet been elevated to a constitutional plane even though some states have seen fit to adopt it. (Emphasis supplied). Moreover, appellants’ arguments notwithstanding, at least one Circuit Court of Appeals has held that Rule 16(b) of the Federal Rules of Criminal Procedure forbids a trial court from ordering those who will serve as witnesses for the prosecution to submit to defense deposition. See United States v. Conder, 423 F.2d 904, 910 (6th Cir. 1970). The general view, however, is that, with the exception of capital cases, the question of the extent of defense discovery, at least that discovery which requires judicial assistance, is a matter within the discretion of the trial court. United States v. Richter, 488 F.2d 170, 175 (9th Cir. 1973). That discretion is not easily abused. “Denial of a motion to take a deposition is reviewable on appeal from a judgment of conviction but defendant has a heavy burden to show an abuse of discretion by the trial court, and no defendant thus far has prevailed on such an" }, { "docid": "23625208", "title": "", "text": "depose in a civil case in a federal district court can move in that court under Fed.R.Civ.P. 30(b) to stay or limit the deposition, the district court in which the criminal case is pending should enjoin the taking of such a deposition only in exceptional circumstances. As we have held, no such circumstances are present here. Judge Bryan relied heavily upon two lines of cases in which “it has been consistently held that where both civil and criminal proceedings arise out of the same or related transactions an objecting party is generally entitled to a stay of discovery in the civil action until disposition of the criminal matter * * * whether the defendant in the criminal case seeks to use the civil rules to obtain disclosure of the Government’s evidence,” citing, for example, Campbell v. Eastland, 307 F.2d 478 (5 Cir. 1962), cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963), “or whether the Government seeks a similar advantage to secure evidence not otherwise available to the prosecution,” citing Perry v. McGuire, 36 F.R.D. 272 (S.D.N.Y.1964), Paul Harrigan & Sons, Inc. v. Enterprise Animal Oil Co., Inc., 14 F.R.D. 333 (E.D.Pa. 1953), and National Discount Corp. v. Holzbaugh, 13 F.R.D. 236 (E.D.Mich.1952). 262 F.Supp. at 74. Both lines of cases seem to us to be inapposite. Cases where the criminal defendant seeks disclosure of the government’s evidence, or the government seeks disclosure of the defendant’s, are distinguishable because here the trustee, who seeks to depose appellees, is pursuing an independent action on behalf of Continental’s creditors and security holders, which was commenced more than one year before the indictment was found. And the cases in the second line appear to us, as they did to Judge Mishler in his opinion of October 24, 1966, to rest upon the deponent’s assertion of his privilege against self-incrimination; to the extent that they do not, we decline to follow them. In both National Discount Corp. v. Holzbaugh, supra, and Paul Harrigan & Sons, Inc. v. Enterprise Animal Oil Inc., supra, the deponents explicitly asserted their privileges against self-incrimination, and" }, { "docid": "19220030", "title": "", "text": "to avoid discovery by asserting the pendency of a separate criminal investigation. The Court begins with the general proposition that the broad rules of civil discovery cannot be used to circumvent the more restrictive rules of criminal discovery. See, United States v. Mellon Bank, 545 F.2d 869, 873 (3rd Cir.1976); McSurely v. McClellan, 426 F.2d 664, 671-72 (D.C.Cir.1970); Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir.1962) cert. denied 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963). See also Founding Church of Scientology v. Kelley, 77 F.R.D. 378, 380 (D.D.C.1977) (“It is well-established that a litigant should not be allowed to make use of the liberal [civil] discovery procedures ... to avoid the restrictions on criminal discovery.”) This principle applies whether or not the litigant is actually a defendant in the parallel criminal case. Founding Church of Scientology, 77 F.R.D. at 380 fn. 4. However, the Court is cognizant of the restrictions on the principle: “[s]uch a privilege is not of unlimited duration, but ceases after a reasonable time.” Kinoy v. Mitchell, 67 F.R.D. 1, 12 (S.D.N.Y.1975). Turning to plaintiffs’ contentions, the Court finds them unpersuasive. First, the closeness in proximity in the filing of this case after the initiation of the criminal investigation, and the similarity in the subject matter, i.e. credit card transactions, of the two cases vitiates against plaintiffs argument that the two cases are separate and distinct actions. Moreover, plaintiffs cannot receive information through the “backdoor” that which cannot be obtained through the front; in other words, by only directing discovery requests to the Bank defendants, plaintiffs cannot circumvent the discovery rules in criminal proceedings. It is clear to this Court after review of the requests that the discovery requests directed to the Bank defendants have a direct bearing on the ongoing criminal investigation, and therefore are not discoverable, at this time, in the parallel civil action. Accordingly, this Court hereby ALLOWS the Federal and Bank defendants’ motions for stay of discovery. In order to protect plaintiffs’ rights in the present action and in keeping with the restrictions on the stay of parallel actions," }, { "docid": "15762552", "title": "", "text": "of Civil Procedure. The motion renewed the government’s earlier contentions as to the insufficiency of Eisenberg’s request and, for the first time, identified Eisenberg as the target of a pending grand jury investigation in Houston. By way of reply to Eisenberg’s opposition, the government further elaborated that relations of the United States with foreign countries would be harmed should Guilbert be deposed. To prove its case, the United States attorney was prepared to introduce an affidavit and two in camera groups of documentary evidence. A formal “state secrets” privilege as to the documents was not claimed, however. During the argu ment on the motion, this evidence was examined by the court in camera and found to be probative of the government’s allegation that foreign relations would be impaired by discovery. Eisenberg was never permitted to inspect the documents. At the conclusion of the presentations, the court granted the government’s Rule 60(b) motion and vacated and set aside the order granting the amended petition for deposition. In accordance with Campbell v. Eastland, 307 F.2d 478 (5th Cir.), cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963), the court declared that Eisenberg’s need for the deponent’s information in the preparation of his civil case must be subordinated to the pending grand jury’s interest in secrecy. A concern that the deposition would invade a very sensitive area of foreign relations, as well as jeopardize the FBI’s foreign interests, also contributed to the court’s decision. In its April 4, 1980, order, the court found as a matter of fact that the information was actually sought by Eisenberg for use in the criminal proceeding that was foreshadowed by the grand jury inquiry. Prelitigation discovery was denied for at least six months, pending the outcome of the criminal investigation. Secret documents and grand jury materials presented to the court under seal were ordered to be preserved as such until the court ordered otherwise. Eisenberg unsuccessfully sought reconsideration of the court’s ruling on April 14, 1980, on the grounds that the order (1) was improperly based on ex parte evidence submitted to the court" }, { "docid": "23625207", "title": "", "text": "investigation statutes, passport eligibility, and general public opprobrium.” Ullmann v. United States, 350 U.S. 422, 430, 76 S.Ct. 497, 502, 100 L.Ed. 511 (1955); see Piemonte v. United States, 367 U.S. 556, 81 S.Ct. 1720, 6 L.Ed.2d 1028 (1961). We cannot agree that “civilized standards of procedure and evidence,” McNabb v. United States, supra, at 340, 63 S.Ct. at 612, require that a witness under indictment be given the option of nonappearance in any proceedings in related civil or criminal cases until his own trial is concluded. We are also led . to reverse Judge Bryan’s order by the consideration that injunctions against prosecution of independent actions are fraught with possibilities of conflict between courts, which a court of appeals may not in other cases be in so happy a position to resolve as we are here. If this injunction were upheld, a like one might well be issued against the prosecution of an action in a district court outside this circuit, or even in a state court. Especially as a defendant called upon to depose in a civil case in a federal district court can move in that court under Fed.R.Civ.P. 30(b) to stay or limit the deposition, the district court in which the criminal case is pending should enjoin the taking of such a deposition only in exceptional circumstances. As we have held, no such circumstances are present here. Judge Bryan relied heavily upon two lines of cases in which “it has been consistently held that where both civil and criminal proceedings arise out of the same or related transactions an objecting party is generally entitled to a stay of discovery in the civil action until disposition of the criminal matter * * * whether the defendant in the criminal case seeks to use the civil rules to obtain disclosure of the Government’s evidence,” citing, for example, Campbell v. Eastland, 307 F.2d 478 (5 Cir. 1962), cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963), “or whether the Government seeks a similar advantage to secure evidence not otherwise available to the prosecution,” citing Perry v." }, { "docid": "14829065", "title": "", "text": "to support the district court’s conclusion that the threatened civil action was actually designed to help the defendants’ attorney prepare his defense to the federal criminal charges. In addition, defendants’ pleadings show that the purpose of the lawsuit, or the threat, may well have been to affect Bean’s criminal trial testimony. The underlying purpose of the Federal statute is to prevent harassing actions which may affect testimony in criminal trials. Defendants’ pleadings state: It thus can hardly have come as a surprise to Mr. Morgan when he was told expressly by undersigned counsel that his clients had authorized him to institute a civil action for defamation against Mr. Bean unless it could be established that he had not made the statements in question or if, having made them, he refused to retract them. (Vol. 1, 5 at 4) (Emphasis added, footnote omitted). The Fifth Circuit Court of Appeals noted this conflict in the Federal Civil and Criminal Procedures, prior to the enactment of section 1514: A litigant should not be allowed to make use of the liberal discovery procedures applicable to a civil suit as a dodge to avoid the restrictions on criminal discovery and thereby obtain documents he would not otherwise be entitled to for use in his criminal suit. Judicial discretion and procedural flexibility should be utilized to harmonize the conflicting rules and to prevent the rules and policies applicable to one suit from doing violence to those pertaining to the other. Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir.1962), cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963). The issues boil down to whether the timing of a lawsuit can deprive it of a legitimate purpose, even though in the long run it could serve such a purpose if delayed. The legislative history is clear. Congress intended the criminal provisions, accompanied by the civil protective provision, to reach the threat of otherwise lawful conduct if such conduct was obstructive, or in the case of section 1514, harassing. A strong indicator of Congress’ determination to strengthen existing legal protections for victims and witnesses of" }, { "docid": "23144722", "title": "", "text": "by the trial court to a time close to the trial of the indictment. United States v. Corallo, 284 F.Supp. 240 (S.D.N.Y.1968); United States v. Kahaner, 204 F.Supp. 921 (S.D.N.Y.1962). A fortiori we cannot anticipate their outcome now. Finally, plaintiff contends that the disciplinary hearing will afford to the state discovery in advance of trial, by forcing the disclosure of witnesses which he may call and subjecting them to cross-examination, and by disclosing to the state the thrust of his cross-examination of the state’s witnesses. As with plaintiff’s Fifth Amendment contention, similar prejudice, if it be prejudice, may occur respecting civil and criminal tax liability, civil and criminal antitrust violations, liability for civil and criminal fraud, and many other cases. Undoubtedly there are cases in which a court in the exercise of its discretion should stay discovery in a civil action pending the disposition of a criminal case. See, e. g., Texaco, Inc. v. Borda, 383 F.2d 607 (3 Cir. 1967), where this court approved the exercise of such discretion by the district court in an antitrust case. But there is no constitutional requirement that this be done, and in the same case some of the limitations which the district court placed upon discovery were found to be an .abuse of discretion. Texaco, Inc. v. Borda, supra, at 608. In United States v. American Radiator & Standard San. Corp., 388 F.2d 201, 204 (3 Cir. 1967), cert. denied, 390 U.S. 922, 88 S.Ct. 857, 19 L.Ed.2d 983 (1968), this court said, with respect to a contention similar to that advanced here: On the merits, we know of no rule or equitable principle that protects a defendant in a pending criminal prosecution from the disclosure, by another person in a separate civil action, of evidence which may later become part of the prosecution’s case against him. See also Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 52, 33 S.Ct. 9, 57 L.Ed. 107 (1912). Cases such as Campbell v. Eastland, 307 F.2d 478 (5 Cir. 1962), cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963), staying" } ]

[ { "docid": "15910828", "title": "", "text": "federal government. Compare In re Al Fayed, 210 F.3d 421, 422-23 (4th Cir.2000) (even assuming § 1782 covered the government, the district court properly exercised its discretion to deny Al Fayed’s application for a subpoena of the National Security Agency); In re Kevork, 788 F.2d 566, 568 (9th Cir.1986) (affirming issuance of subpoena to three FBI agents under § 1782 at behest of Ontario Supreme Court, but issue of statute’s coverage of government was not raised). Plainly § 1782 neither excludes nor includes the sovereign explicitly. The Dictionary Act, whose definitions govern the meaning of acts of Congress “unless the context indicates otherwise,” says that the word “person” includes “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1. The Supreme Court has construed prior similar language to exclude the United States, United States v. United Mine Workers of America, 330 U.S. 258, 275, 67 S.Ct. 677, 91 L.Ed. 884 (1947), and to find that “person” excludes states, Will v. Michigan Dep’t of State Police, 491 U.S. 58, 69-70 & nn. 8-9, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), but does include municipalities, Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 688-89, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (construing “person” to include municipalities in statute enacted when Dictionary Act said that the word encompassed “bodies politic and corporate”). More generally, the Court has repeatedly held that the word “person” in a statute does not include a sovereign government absent affirmative evidence of such an inclusory intent. It applied the principle just this year in Vermont Agency of Natural Resources v. United States ex rel. Stevens, — U.S.-, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000), when it decided that a state or state agency was not a person within the meaning of the False Claims Act’s provision exposing to liability “[a]ny person” presenting a false claim to employees or officials of the United States government. Id. at 1866. The Court invoked its “longstanding interpretative presumption that ‘person’ does not include the sovereign.” Id. Although it acknowledged that “[t]he" } ]

[ { "docid": "1650113", "title": "", "text": "been a past assumption in this Circuit “that ‘person’ in Rule 45 included the federal government, [this Circuit has] never expressly so held.” Linder, 251 F.3d at 181-82. That assumption was called into question in Al Fayed v. CIA, 229 F.3d 272 (D.C.Cir.2000). In Al Fayed, the Court of Appeals interpreted the term “person” as used in 28 U.S.C. § 1782(a), a statute that permits discovery directed to non-parties in the federal courts by parties to proceeding before foreign and international courts, to not include the federal government. Al Fayed, 229 F.3d at 273. In so holding, the court relied on the general statutory presumption that “the word ‘person’ ... does not include a sovereign absent affirmative evidence of such an inclusory intent.” Id. at 274. The court went on to explain that “[t]he presumption is not a ‘hard and fast rule of exclusion ... [but] it may be disregarded only upon some statutory intent to the contrary.’ ” Id. (quoting Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 120 S.Ct. 1858, 1867, 146 L.Ed.2d 836 (2000)). In response to Al Fayed and Linder, the District Court has re-examined the assumption that Rule 45 applies to the federal government and held that “person” as used in Rule 45 does not include federal agencies. Ho, 374 F.Supp.2d at 84 n. 4 (noting that all of the opinions since Linder have applied the reasoning in Al Fayed to exempt the federal government from Rule 45); Lerner v. District of Columbia, 2005 WL 2375175 at *4, C.A. No. 00-1590 (D.D.C. Jan. 7, 2005) (“Despite the fact that Al Fayed did not directly address the issue now before this Court, our Circuit’s reasoning in that case is dispositive and ... compels the conclusion that the term ‘person’ in rule 45 does not include the federal government.”); Yousuf v. Samantar, 2005 WL 1523385 at *4, Misc. Case No. 05-110 (D.D.C. May 3, 2005) (finding no reason to deviate from the Circuit’s reasoning in Al Fayed, the court was “compelled to conclude that a federal government agency is not a" }, { "docid": "18234158", "title": "", "text": "comprise the United States. Truex v. Allstate Ins. Co., No. 05-0439, 2006 WL 241228, at *5 (D.D.C. Jan.26, 2006); SEC v. Biopure Corp., No. 05-506, slip. op. at 8 (D.D.C. Jan. 20, 2006); Robinson v. City of Phila., 233 F.R.D. 169, 172 (E.D.Pa.2005); Ho v. United States, 374 F.Supp.2d 82, 84 n. 4 (D.D.C.2005); Aloha-Care, Inc. v. State of Hawaii ex rel. Dep’t of Human Servs., No. 04-498, 2004 WL 3634008, slip op. at 12 (D.D.C. June 28, 2005); Taylor v. Gabelli, 233 F.R.D. 174, 176 (D.D.C.2005); Yousuf v. Samantar, No. 05-110, 2005 WL 1523385, at *4 (D.D.C. May 3, 2005); Lerner v. Dist. of Columbia, No. 00-1590, 2005 WL 2375175, at *2 (D.D.C. Jan.7, 2005). All but one of these courts sit in the District Court for the District of Columbia. Not surprisingly, the FDA submits that this Court should follow the D.C. District Court’s approach. Whereas, the PSC urges that the Court should forge its own divergent path. The Fifth Circuit has not yet spoken on this question and neither has any other circuit court with the possible exception of the D.C. Circuit in Linder and that court only addressed the issue in dicta. The basis for the decisions out of the D.C. courts sheds some light on this issue. There is a recognized interpretative rebuttable presumption that with regard to the application of substantive laws, the sovereign may not be considered a “person.” Numerous courts, including the D.C. Circuit in Al Fayed and Linder, have recognized and applied the longstanding interpretive presumption that the word “person” does not include the sovereign. Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 780, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000); United States v. Mine Workers, 330 U.S. 258, 275, 67 S.Ct. 677, 91 L.Ed. 884 (1947); United States v. Cooper Corp., 312 U.S. 600, 604, 61 S.Ct. 742, 85 L.Ed. 1071 (1941). The presumption is not a “ ‘hard and fast rule of exclusion,’” but may be disregarded only upon some affirmative showing of statutory intent to the contrary. Vermont Agency, 529 U.S. at" }, { "docid": "1650115", "title": "", "text": "‘person’ within the meaning of Rule 45 and thus [could] not enforce a Rule 45 subpoena served on such agency.”); United States ex rel. Taylor v. Gabelli, 233 F.R.D. 174, 2005 WL 2375173 at *2, Misc. Case No. 04-534 (D.D.C. May 3, 2005) (“the Court finds that the term ‘person’ in Rule 45, in the absence of a satisfactory basis to override this interpretive presumption, does not include the federal government.”). Applying the Court of Appeals’ reasoning in Al Fayed and the subsequent reasoning of the judges of this court, I find that Truex has presented no authority to overcome the presumption that “person” within Rule 45 does not include the government. Therefore, Truex’s subpoena is not enforceable against FEMA and must be quashed. III. CONCLUSION For the foregoing reasons, I will deny Truex’s motion to compel and grant FEMA’s cross-motion to quash. ORDER In accordance with the accompanying memorandum opinion, it is, hereby, ORDERED that Donald L. Truex’ Renewed Notice of Motion and Motion to Compel Deposition of FEMA Personnel [# 9] is DENIED and it is FURTHER ORDERED that the Federal' Emergency Management Administration’s Cross-Motion to Quash Subpoena [# 7] is GRANTED. SO ORDERED. . Because Truex’s renewed motion to compel is identical to his original motion to compel and because the trial date is less than two weeks away, I find it unnecessary to wait for FEMA to file an opposition to his renewed motion before ruling on it. FEMA's opposition appears to have been fully briefed in its response to Truex's original motion. . In Touhy, the Supreme Court held that a Department of Justice employee could not be held in contempt for refusing to comply with a subpoena duces tecum where the employee's superior had prohibited him from producing the subpoenaed documents pursuant to an agency regulation promulgated under 5 U.S.C. § 301. . There is some indication that this Circuit would treat a subpoena duces tecum differently. See Linder v. Calero-Portocarrero, 251 F.3d 178, (D.C.Cir.2001); Houston Business Journal, 86 F.3d at 1212 n. 4. However, this court recently made it clear that, where an" }, { "docid": "18234156", "title": "", "text": "subpoena shall ... command each person to whom it is directed to attend and give testimony.” Fed.R.Civ.P. 45(a)(1)(C). Subpoenas may be issued to non-parties pursuant to Rule 45, but that non-party can move to quash the subpoena for the reasons set forth in Rule 45(c)(3)(A), such as failure to allow a reasonable time for compliance, requiring a person to travel more than one hundred miles from his residence or employment, requiring disclosure of a privilege or protected matter, or undue burden. Fed. R.Civ.P. 45(c)(2)(B). When the government is a party to litigation, it is subject to the rules of discovery. United States v. Procter & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). Furthermore, in the past, it has always been assumed that the government is a “person” under Rule 45, even when the government is a non-party. Linder v. Calero-Portocarrero, 251 F.3d 178, 181 (D.C.Cir.2001). This assumption, however, was questioned by the United States Court of Appeals for the District of Columbia in Under. The Court in Linder based its conclusions in large part on the circuit’s ruling in Al Fayed v. CIA, 229 F.3d 272 (D.C.Cir.2000). In Al Fayed, the D.C. Circuit held that “person” as used in 28 U.S.C. § 1782 does not encompass the United States. The following year in Linder, based on its holding in Al Fayed, the D.C. Circuit questioned whether “person” as used in Rule 45, which it considered similar in function to section 1782, encompassed the United States. Linder, 251 F.3d at 181. Although calling for a reexamination of the assumption that “person” as used in Rule 45 comprehends the United States, the Linder court did not resolve the issue because the government had not properly raised the issue in the district court. Id. Instead, the Linder court affirmed the district court’s ruling that the plaintiffs must pay half of the United States’ reasonable copying and labor costs in complying with the plaintiffs’ subpoena. Id. at 183. Since Linder, several district courts using the Linder dicta have found that “person” as used in Rule 45 does not" }, { "docid": "5025920", "title": "", "text": "document requests). See United States ex. rel. Touhy v. Ragen, 340 U.S. 462, 468-70, 71 S.Ct. 416, 95 L.Ed. 417 (1951) (upholding regulation prohibiting agency employees from releasing documents without consent of agency head). The United States, on the Department’s behalf, objected to the subpoena, whereupon the plaintiffs filed in the District Court for the District of Columbia a motion to compel compliance. See Fed.R.Civ.P. 45(c)(2)(B). The Government opposed the motion on the grounds it was not a “person” subject to subpoena under Rule 45; the plaintiffs had not followed proper procedures in subpoenaing the Department; and the subpoena was unduly burdensome. The plaintiffs then argued the Government had forfeited its objections to the subpoena because it had not raised them within the time limit set by Rule 45(c)(2)(B) and, in any event, maintained the subpoena was in all respects proper. The district court denied the plaintiffs’ motion to compel. It began by recognizing a “longstanding interpretive presumption,” Al Fayed v. CIA, 229 F.3d 272, 274 (D.C.Cir.2000), that, as used in a statute, the term “person” does not include the United States. Holding the presumption unrebutted in this case, the court did not reach the Government’s other objections to the subpoena. The plaintiffs now appeal. II. Analysis The plaintiffs argue the district court erred in denying their motion because (1) the Government forfeited its objections when it failed to raise them in a timely manner and (2) the Government is a “person” for purposes of Rule 45. With regard to the latter point, the plaintiffs contend the district court should not have applied the interpretive presumption to Rule 45 and, even if the presumption is applicable, it has been overcome. The Government in turn denies it forfeited its objections and defends the decision of the district court. We review the district court’s discovery orders for abuse of discretion, Linder v. Calero-Portocarrero, 251 F.3d 178, 181 (D.C.Cir.2001), except as to questions of law — such as the proper interpretation of Rule 45 — which we decide de novo. Eldred v. Reno, 239 F.3d 372, 374 (D.C.Cir.2001). We must begin our analysis," }, { "docid": "1635212", "title": "", "text": ". Vt. Agency, 529 U.S. at 781, 120 S.Ct. 1858. . See United States v. United Mine Workers, 330 U.S. 258, 275, 67 S.Ct. 677, 91 L.Ed. 884 (1947) (\"In common usage that term [‘person’] does not include the sovereign, and statutes employing it will ordinarily not be construed to do so.”) . 229 F.3d 272, 276-77 (D.C.Cir.2000). Section 1782 provides that the \"district court of the district in which a person resides or is found may order him to give his testimony.” . 251 F.3d 178, 180-81 (D.C.Cir.2001). . See Yousuf v. Samantar, No. MISC. 05-110 (RBW), 2005 WL 1523385 (D.D.C. May 3, 2005); United States ex rel. Taylor v. Gabelli, No. MISC. 04-534 (RJL), 2005 WL 2375173 (D.D.C. May 3, 2005); Lerner v. District of Columbia, 362 F.Supp.2d 149 (D.D.C.2005). . See, e.g., Gabelli, 2005 WL 2375173, at *2. . At least one case has squarely held that the word \"person\" in Rule 45 does include the federal government. See Connaught Labs., Inc. v. Smithkline Beecham P.L.C., 7 F.Supp.2d 477, 480 (D.Del.1998) (holding that the court had authority under Rule 45 to modify and enforce subpoenas against non-party federal agencies). The Connaught Labs court based its holding on a prior Ninth Circuit case, Exxon Shipping v. United States Dep't of Interior, 34 F.3d 774, 780 (9th Cir.1994) (concluding that \"district courts should apply the federal rules of discovery when deciding on discovery requests made against government agencies, whether or not the United States is a party to the underlying action”). However, neither Connaught Labs or Exxon Shipping persuades this Court. First, those cases fail to address the Supreme Court’s long standing presumption against interpreting \"person” to include the federal government. Second, the plaintiff in Exxon Shipping was also proceeding against the government under the Administrative Procedure Act, and thus the court there, unlike here, did have some source of authority to exercise against the federal government. . See In re Grand Jury Matter, 682 F.2d 61, 63-65 (3d Cir.1982)." }, { "docid": "1635206", "title": "", "text": "be Compelled to Provide Discovery The second issue raised is whether federal agencies and employees must comply with a subpoena pursuant to Rule 45 of the Federal Rules of Civil Procedure where they are not a party to the action. Rule 45 provides, in pertinent part, that “every subpoena shall ... command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying [of documents].” Therefore, the Court must specifically decide whether the word “person” in Rule 45 includes the federal government and its employees. The Third Circuit has never addressed this issue, and this Court’s decision is thus informed by related Supreme Court precedent and persuasive authority from other jurisdictions. The Supreme Court has followed a “longstanding interpretative presumption that ‘person’ does not include the sovereign.” “Although not a.hard and fast rule of exclusion, the presumption may be disregarded only upon some affirmative showing of statutory intent to the contrary.” The Supreme Court’s presumption is based on commonsense: the word “person” is not used ordinarily to refer to a government. In a series of recent decisions, the District of Columbia Circuit and its lower courts have applied this presumption to the issue at bar. In Al Fayed v. CIA, that Circuit held that the word “person” in 28 U.S.C. § 1782, a statute similar to Rule 45, does not include the federal government. Then, in Linder v. Calero-Portocarrero, the D.C. Circuit suggested — but did not hold— that Rule 45 should be similarly interpreted to exclude the federal government. Lower federal courts in the D.C. Circuit have subsequently applied the principles underlying Al Fayed and Linder to hold that “person” in Rule 45 does not include federal government agencies. Those cases found no evidence rebutting the presumption that Rule 45 was drafted to exclude the federal government from its operation. This Court agrees with the holdings in the D.C. Circuit eases. Absent some evidence rebutting the presumption that the word “person” in Rule 45 does not include the federal government, which the City has failed to provide here, Rule 45" }, { "docid": "18234167", "title": "", "text": "the same agency. Id. Accordingly, the presumption was properly applied because if “person” as used in section 1442(a)(1) encompassed a federal agency, section 1442(a)(1) would be “decidedly awkward” and produce “absurd results.” Id. at 83-84, 111 S.Ct. 1700. In United Mine Workers, the Supreme Court applied the presumption and found that the federal government was not an “employer” under 29 U.S.C. § 52. 330 U.S. at 269-89, 67 S.Ct. 677, cited in Vermont Agency, 529 U.S. at 780, 120 S.Ct. 1858; Will, 491 U.S. at 64, 109 S.Ct. 2304; Wilson, 442 U.S. at 667, 99 S.Ct. 2529; Robinson, 233 F.R.D. at 172 n. 12; AlohaCare, No. 04-498, 2004 WL 3634008, slip. op. at 9; Gabelli; 233 F.R.D. 174, 2005 WL 2375173, at *1; Lerner, 2005 WL 2375175, at *4. The presumption was properly applied because had the federal government been considered an “employer,” it would have been divested of its sovereign power to seize and operate coal mines in the United States. 330 U.S. at 272-73, 289, 67 S.Ct. 677. In Cooper Corp., the Supreme Court applied the presumption and found that the federal government was not a “person” under 15 U.S.C. § 15. 312 U.S. at 604-14, 61 S.Ct. 742, cited in Vermont Agency, 529 U.S. at 780, 120 S.Ct. 1858; Int’l Primate, 500 U.S. at 83, 111 S.Ct. 1700; Will, 491 U.S. at 64, 109 S.Ct. 2304; Wilson, 442 U.S. at 667, 99 S.Ct. 2529; Al Fayed, 229 F.3d at 274; AlohaCare, No. 04-498, 2004 WL 3634008, slip, op. at 9; Lerner, 2005 WL 2375175, at *4. The presumption was properly applied because the recognition of the federal government as a “person” would have potentially subjected the federal government to treble damages under the Sherman Anti-Trust Act. 312 U.S. at 606, 61 S.Ct. 742. Considering that such an interpretation would have served as a waiver of sovereign immunity, the presumption was properly applied. In United States v. Fox, without applying any presumption, the Supreme Court found that the federal government was not a “person” under the New York statute of wills. 94 U.S. 315, 321, 24 L.Ed. 192" }, { "docid": "1635211", "title": "", "text": "with the FBI at the time of the events giving rise to this suit. . Def.’s Mots. to Compel Ex. B at 3. . Pl.’s Dep. at 117. . Pl.’s Resp. to Def.’s Mot. at 8. . In her Response to the Motion, Robinson states: \"Upon information and belief, it appears as if the government is maintaining the position that [Robinson] is permitted to testify to any and all matters relating to her conversations with the FBI.\" Pl.'s Resp. to Def.’s Mot. at 8. . Def.’s Mots, to Compel Ex. B at 3. . Fed.R.Civ.P. 45(a)(1)(C). . Vt. Agency of Nat’l Res. v. United States ex rel. Stevens, 529 U.S. 765, 780, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (holding that a state or agency is not a \"person\" subject to qui tam liability under the False Claims Act); see Int'l Primate Prot. League v. Adm'rs of Tulane Educ. Fund, 500 U.S. 72, 82-83, 111 S.Ct. 1700, 114 L.Ed.2d 134 (1991) (explaining that the word \"person” in statutes is usually interpreted to exclude the sovereign). . Vt. Agency, 529 U.S. at 781, 120 S.Ct. 1858. . See United States v. United Mine Workers, 330 U.S. 258, 275, 67 S.Ct. 677, 91 L.Ed. 884 (1947) (\"In common usage that term [‘person’] does not include the sovereign, and statutes employing it will ordinarily not be construed to do so.”) . 229 F.3d 272, 276-77 (D.C.Cir.2000). Section 1782 provides that the \"district court of the district in which a person resides or is found may order him to give his testimony.” . 251 F.3d 178, 180-81 (D.C.Cir.2001). . See Yousuf v. Samantar, No. MISC. 05-110 (RBW), 2005 WL 1523385 (D.D.C. May 3, 2005); United States ex rel. Taylor v. Gabelli, No. MISC. 04-534 (RJL), 2005 WL 2375173 (D.D.C. May 3, 2005); Lerner v. District of Columbia, 362 F.Supp.2d 149 (D.D.C.2005). . See, e.g., Gabelli, 2005 WL 2375173, at *2. . At least one case has squarely held that the word \"person\" in Rule 45 does include the federal government. See Connaught Labs., Inc. v. Smithkline Beecham P.L.C., 7 F.Supp.2d 477, 480 (D.Del.1998) (holding" }, { "docid": "18234164", "title": "", "text": "that the government is not a person. The cases relied on by these district courts, however, have all been cases dealing with the application vel non of substantive statutes to the United States. For example, in Vermont Agency, the Supreme Court applied the presumption and found that a State was not a “person” subject to qui tam liability under 31 U.S.C. § 3729(a). 529 U.S. at 778-88, 120 S.Ct. 1858, cited in Linder, 251 F.3d at 181; Al Fayed, 229 F.3d at 274; Truex, 2006 WL 241228, at *4; Robinson, 233 F.R.D. at 172 n. 10; Biopure Corp., No. 05-506, slip. op. at 4; AlohaCare, No. 04498, 2004 WL 3634008, slip. op. at 9; Gabelli, 233 F.R.D. at 174-75; Lerner, 2005 WL 2375175, at *3-4. In Will v. Michigan Dep’t of State Police, the Supreme Court applied the presumption and found that a State was not a “person” under 42 U.S.C. § 1983. 491 U.S. 58, 72-87, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), cited in Vermont Agency, 529 U.S. at 781, 120 S.Ct. 1858; Int’l Primate Protection League v. Administrators of Tulane Educational Fund, 500 U.S. 72, 83, 111 S.Ct. 1700, 114 L.Ed.2d 134 (1991); Al Fayed, 229 F.3d at 274; Biopure Corp., No. 05-506, slip. op. at 3; AlohaCare, No. 04-498, 2004 WL 3634008, slip. op. at 9; Lerner, 2005 WL 2375175, at *4. In Wilson v. Omaha Indian Tribe, the Supreme Court applied the presumption and found that a State was not a “white person” under 25 U.S.C. § 194. 442 U.S. 653, 666-69, 99 S.Ct. 2529, 61 L.Ed.2d 153 (1979), cited in Vermont Agency, 529 U.S. at 781, 120 S.Ct. 1858; Will, 491 U.S. at 64, 109 S.Ct. 2304; Lerner, 2005 WL 2375175, at *4. In Vermont Agency, Will, and Wilson, the presumption was properly applied because each of the States at issue was facing potential liability, which they had not been subject to before, due to the act of another sovereign— the federal government. Considering that the federal government was divesting these States of their sovereign immunity, the presumption was properly applied. In International Primate," }, { "docid": "18234163", "title": "", "text": "policeman pursuing a criminal or the driver of a fire engine responding to an alarm.” Id. at 384, 58 S.Ct. 275. Therefore, according to Knight, Her-ron, and Nardone, before a court can determine whether a general statute applies to the sovereign, a court must first determine the purpose of the statute. If the statute is designed for the public good, to advance justice, or to prevent injury, there is a presumption that the statute applies to the sovereign. If the statute divests the sovereign of its titles or rights, it is presumed that the statute does not apply to the sovereign; however, this exclusion is not stringently applied where the statute affects an agent of the government, rather than the sovereign itself. Lastly, it is presumed that the statute does not apply to the sovereign or agents thereof if such an application would result in an absurd result. All the district courts that have previously ruled that the government is a “person” under Rule 45 have relied on Supreme Court precedent for applying the presumption that the government is not a person. The cases relied on by these district courts, however, have all been cases dealing with the application vel non of substantive statutes to the United States. For example, in Vermont Agency, the Supreme Court applied the presumption and found that a State was not a “person” subject to qui tam liability under 31 U.S.C. § 3729(a). 529 U.S. at 778-88, 120 S.Ct. 1858, cited in Linder, 251 F.3d at 181; Al Fayed, 229 F.3d at 274; Truex, 2006 WL 241228, at *4; Robinson, 233 F.R.D. at 172 n. 10; Biopure Corp., No. 05-506, slip. op. at 4; AlohaCare, No. 04498, 2004 WL 3634008, slip. op. at 9; Gabelli, 233 F.R.D. at 174-75; Lerner, 2005 WL 2375175, at *3-4. In Will v. Michigan Dep’t of State Police, the Supreme Court applied the presumption and found that a State was not a “person” under 42 U.S.C. § 1983. 491 U.S. 58, 72-87, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), cited in Vermont Agency, 529 U.S. at 781, 120 S.Ct. 1858;" }, { "docid": "1650114", "title": "", "text": "120 S.Ct. 1858, 1867, 146 L.Ed.2d 836 (2000)). In response to Al Fayed and Linder, the District Court has re-examined the assumption that Rule 45 applies to the federal government and held that “person” as used in Rule 45 does not include federal agencies. Ho, 374 F.Supp.2d at 84 n. 4 (noting that all of the opinions since Linder have applied the reasoning in Al Fayed to exempt the federal government from Rule 45); Lerner v. District of Columbia, 2005 WL 2375175 at *4, C.A. No. 00-1590 (D.D.C. Jan. 7, 2005) (“Despite the fact that Al Fayed did not directly address the issue now before this Court, our Circuit’s reasoning in that case is dispositive and ... compels the conclusion that the term ‘person’ in rule 45 does not include the federal government.”); Yousuf v. Samantar, 2005 WL 1523385 at *4, Misc. Case No. 05-110 (D.D.C. May 3, 2005) (finding no reason to deviate from the Circuit’s reasoning in Al Fayed, the court was “compelled to conclude that a federal government agency is not a ‘person’ within the meaning of Rule 45 and thus [could] not enforce a Rule 45 subpoena served on such agency.”); United States ex rel. Taylor v. Gabelli, 233 F.R.D. 174, 2005 WL 2375173 at *2, Misc. Case No. 04-534 (D.D.C. May 3, 2005) (“the Court finds that the term ‘person’ in Rule 45, in the absence of a satisfactory basis to override this interpretive presumption, does not include the federal government.”). Applying the Court of Appeals’ reasoning in Al Fayed and the subsequent reasoning of the judges of this court, I find that Truex has presented no authority to overcome the presumption that “person” within Rule 45 does not include the government. Therefore, Truex’s subpoena is not enforceable against FEMA and must be quashed. III. CONCLUSION For the foregoing reasons, I will deny Truex’s motion to compel and grant FEMA’s cross-motion to quash. ORDER In accordance with the accompanying memorandum opinion, it is, hereby, ORDERED that Donald L. Truex’ Renewed Notice of Motion and Motion to Compel Deposition of FEMA Personnel [# 9] is DENIED" }, { "docid": "18234166", "title": "", "text": "the Supreme Court applied the presumption and found that a federal agency was not a “person” under 28 U.S.C. § 1442(a)(1). 500 U.S. at 79-87, 111 S.Ct. 1700, cited in Vermont Agency, 529 U.S. at 781, 120 S.Ct. 1858; Al Fayed, 229 F.3d at 274; Robinson, 233 F.R.D. at 172 n. 10; AlohaCare, No. 04-498, 2004 WL 3634008, slip. op. at 10; Gabelli, 233 F.R.D. at 174-75; Lerner, 2005 WL 2375175, at *4. At the time International Primate was decided, section 1442(a)(1) allowed the removal of a civil action to federal district court if the defendant was “[a]ny officer of the United States or any agency thereof, or person acting under him.” Int'l Primate, 500 U.S. at 79, 111 S.Ct. 1700. Had the Court determined that “person” referred to the federal government, particularly a federal agency, the statute would have “[a]ny officer of the United States or any agency thereof, or agency acting under him.” Id. at 83, 111 S.Ct. 1700. Under such a reading, a federal agency would be acting under an officer of the same agency. Id. Accordingly, the presumption was properly applied because if “person” as used in section 1442(a)(1) encompassed a federal agency, section 1442(a)(1) would be “decidedly awkward” and produce “absurd results.” Id. at 83-84, 111 S.Ct. 1700. In United Mine Workers, the Supreme Court applied the presumption and found that the federal government was not an “employer” under 29 U.S.C. § 52. 330 U.S. at 269-89, 67 S.Ct. 677, cited in Vermont Agency, 529 U.S. at 780, 120 S.Ct. 1858; Will, 491 U.S. at 64, 109 S.Ct. 2304; Wilson, 442 U.S. at 667, 99 S.Ct. 2529; Robinson, 233 F.R.D. at 172 n. 12; AlohaCare, No. 04-498, 2004 WL 3634008, slip. op. at 9; Gabelli; 233 F.R.D. 174, 2005 WL 2375173, at *1; Lerner, 2005 WL 2375175, at *4. The presumption was properly applied because had the federal government been considered an “employer,” it would have been divested of its sovereign power to seize and operate coal mines in the United States. 330 U.S. at 272-73, 289, 67 S.Ct. 677. In Cooper Corp., the Supreme" }, { "docid": "18234165", "title": "", "text": "Int’l Primate Protection League v. Administrators of Tulane Educational Fund, 500 U.S. 72, 83, 111 S.Ct. 1700, 114 L.Ed.2d 134 (1991); Al Fayed, 229 F.3d at 274; Biopure Corp., No. 05-506, slip. op. at 3; AlohaCare, No. 04-498, 2004 WL 3634008, slip. op. at 9; Lerner, 2005 WL 2375175, at *4. In Wilson v. Omaha Indian Tribe, the Supreme Court applied the presumption and found that a State was not a “white person” under 25 U.S.C. § 194. 442 U.S. 653, 666-69, 99 S.Ct. 2529, 61 L.Ed.2d 153 (1979), cited in Vermont Agency, 529 U.S. at 781, 120 S.Ct. 1858; Will, 491 U.S. at 64, 109 S.Ct. 2304; Lerner, 2005 WL 2375175, at *4. In Vermont Agency, Will, and Wilson, the presumption was properly applied because each of the States at issue was facing potential liability, which they had not been subject to before, due to the act of another sovereign— the federal government. Considering that the federal government was divesting these States of their sovereign immunity, the presumption was properly applied. In International Primate, the Supreme Court applied the presumption and found that a federal agency was not a “person” under 28 U.S.C. § 1442(a)(1). 500 U.S. at 79-87, 111 S.Ct. 1700, cited in Vermont Agency, 529 U.S. at 781, 120 S.Ct. 1858; Al Fayed, 229 F.3d at 274; Robinson, 233 F.R.D. at 172 n. 10; AlohaCare, No. 04-498, 2004 WL 3634008, slip. op. at 10; Gabelli, 233 F.R.D. at 174-75; Lerner, 2005 WL 2375175, at *4. At the time International Primate was decided, section 1442(a)(1) allowed the removal of a civil action to federal district court if the defendant was “[a]ny officer of the United States or any agency thereof, or person acting under him.” Int'l Primate, 500 U.S. at 79, 111 S.Ct. 1700. Had the Court determined that “person” referred to the federal government, particularly a federal agency, the statute would have “[a]ny officer of the United States or any agency thereof, or agency acting under him.” Id. at 83, 111 S.Ct. 1700. Under such a reading, a federal agency would be acting under an officer of" }, { "docid": "1635207", "title": "", "text": "to refer to a government. In a series of recent decisions, the District of Columbia Circuit and its lower courts have applied this presumption to the issue at bar. In Al Fayed v. CIA, that Circuit held that the word “person” in 28 U.S.C. § 1782, a statute similar to Rule 45, does not include the federal government. Then, in Linder v. Calero-Portocarrero, the D.C. Circuit suggested — but did not hold— that Rule 45 should be similarly interpreted to exclude the federal government. Lower federal courts in the D.C. Circuit have subsequently applied the principles underlying Al Fayed and Linder to hold that “person” in Rule 45 does not include federal government agencies. Those cases found no evidence rebutting the presumption that Rule 45 was drafted to exclude the federal government from its operation. This Court agrees with the holdings in the D.C. Circuit eases. Absent some evidence rebutting the presumption that the word “person” in Rule 45 does not include the federal government, which the City has failed to provide here, Rule 45 does not apply to the federal officials. Therefore, this Court is without authority to compel the federal officials to comply with a subpoena issued pursuant to Rule 45. Moreover, even if this Court had such authority, it would be unwise to exercise that power here. The Court cannot allow the sweeping discovery requests of a party in a civil action to disrupt an ongoing criminal investigation. Although the strict secrecy requirement of Federal Rule of Criminal Procedure 6(e) applies only to the actual proceedings of a grand jury — not the information underlying those proceedings — the Court is reluctant to permit discovery from the federal officials where what they know and said is at the periphery of this civil ease but possibly at the heart of the ongoing criminal investigation. C. Whether to Place this Matter in Suspense In the event the Court d'eclines to compel discovery of Robinson and the federal officials, the City seeks to place this case in suspense pending the outcome of the FBI’s grand jury investigation. The City argues" }, { "docid": "18234168", "title": "", "text": "Court applied the presumption and found that the federal government was not a “person” under 15 U.S.C. § 15. 312 U.S. at 604-14, 61 S.Ct. 742, cited in Vermont Agency, 529 U.S. at 780, 120 S.Ct. 1858; Int’l Primate, 500 U.S. at 83, 111 S.Ct. 1700; Will, 491 U.S. at 64, 109 S.Ct. 2304; Wilson, 442 U.S. at 667, 99 S.Ct. 2529; Al Fayed, 229 F.3d at 274; AlohaCare, No. 04-498, 2004 WL 3634008, slip, op. at 9; Lerner, 2005 WL 2375175, at *4. The presumption was properly applied because the recognition of the federal government as a “person” would have potentially subjected the federal government to treble damages under the Sherman Anti-Trust Act. 312 U.S. at 606, 61 S.Ct. 742. Considering that such an interpretation would have served as a waiver of sovereign immunity, the presumption was properly applied. In United States v. Fox, without applying any presumption, the Supreme Court found that the federal government was not a “person” under the New York statute of wills. 94 U.S. 315, 321, 24 L.Ed. 192 (1876), cited in Cooper, 312 U.S. at 604 n. 5, 61 S.Ct. 742, aff'g In re Fox’s Will, 52 N.Y. 530 (N.Y.1873), cited in Cooper, 312 U.S. at 604 n. 5, 61 S.Ct. 742. The Court found that the federal government could not be a “person” under the New York statute of wills because if it were so included, New York would have divested sovereign control of lands within its own boundaries. In all of these cases, the Supreme Court was faced with one of the two classes of cases in which the presumption should apply. Nardone, 302 U.S. at 383-84, 58 S.Ct. 275. In Vermont Agency, Will, Wilson, United Mine Workers, Cooper Corp., and Fox, the situation involved the possible divestiture of the sovereign’s rights, privileges, and titles. In International Primate, the situation involved the possibility of an absurd result. Moreover, all of the cases involved the application vel non of substantive statutes to the United States or its agencies. The district courts, which have held that “person” as used in Rule 45 does" }, { "docid": "18234159", "title": "", "text": "circuit court with the possible exception of the D.C. Circuit in Linder and that court only addressed the issue in dicta. The basis for the decisions out of the D.C. courts sheds some light on this issue. There is a recognized interpretative rebuttable presumption that with regard to the application of substantive laws, the sovereign may not be considered a “person.” Numerous courts, including the D.C. Circuit in Al Fayed and Linder, have recognized and applied the longstanding interpretive presumption that the word “person” does not include the sovereign. Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 780, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000); United States v. Mine Workers, 330 U.S. 258, 275, 67 S.Ct. 677, 91 L.Ed. 884 (1947); United States v. Cooper Corp., 312 U.S. 600, 604, 61 S.Ct. 742, 85 L.Ed. 1071 (1941). The presumption is not a “ ‘hard and fast rule of exclusion,’” but may be disregarded only upon some affirmative showing of statutory intent to the contrary. Vermont Agency, 529 U.S. at 781, 120 S.Ct. 1858 (citing Cooper Corp., 312 U.S. at 604-05, 61 S.Ct. 742). The purpose, the subject matter, the context, the legislative history, and the executive interpretation of the statute are all means in which an affirmative showing of statutory intent can be ascertained. Cooper Corp., 312 U.S. at 605, 61 S.Ct. 742. The relevant question in the present case is whether this substantive rule should extend to procedural vehicles such as Rule 45. Perhaps the answer lies in the history and justification for the presumptive rule. With this in mind, the Court turns to this history. In United States v. Knight, 39 U.S. 301, 315, 14 Pet. 301, 10 L.Ed. 465 (1840), the Supreme Court analyzed the application of general laws to the sovereign. Citing to Sir Francis Bacon, the Court found that: the general rule is, that where an act of Parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, the king shall be bound by such act, though not particularly named" }, { "docid": "18234157", "title": "", "text": "its conclusions in large part on the circuit’s ruling in Al Fayed v. CIA, 229 F.3d 272 (D.C.Cir.2000). In Al Fayed, the D.C. Circuit held that “person” as used in 28 U.S.C. § 1782 does not encompass the United States. The following year in Linder, based on its holding in Al Fayed, the D.C. Circuit questioned whether “person” as used in Rule 45, which it considered similar in function to section 1782, encompassed the United States. Linder, 251 F.3d at 181. Although calling for a reexamination of the assumption that “person” as used in Rule 45 comprehends the United States, the Linder court did not resolve the issue because the government had not properly raised the issue in the district court. Id. Instead, the Linder court affirmed the district court’s ruling that the plaintiffs must pay half of the United States’ reasonable copying and labor costs in complying with the plaintiffs’ subpoena. Id. at 183. Since Linder, several district courts using the Linder dicta have found that “person” as used in Rule 45 does not comprise the United States. Truex v. Allstate Ins. Co., No. 05-0439, 2006 WL 241228, at *5 (D.D.C. Jan.26, 2006); SEC v. Biopure Corp., No. 05-506, slip. op. at 8 (D.D.C. Jan. 20, 2006); Robinson v. City of Phila., 233 F.R.D. 169, 172 (E.D.Pa.2005); Ho v. United States, 374 F.Supp.2d 82, 84 n. 4 (D.D.C.2005); Aloha-Care, Inc. v. State of Hawaii ex rel. Dep’t of Human Servs., No. 04-498, 2004 WL 3634008, slip op. at 12 (D.D.C. June 28, 2005); Taylor v. Gabelli, 233 F.R.D. 174, 176 (D.D.C.2005); Yousuf v. Samantar, No. 05-110, 2005 WL 1523385, at *4 (D.D.C. May 3, 2005); Lerner v. Dist. of Columbia, No. 00-1590, 2005 WL 2375175, at *2 (D.D.C. Jan.7, 2005). All but one of these courts sit in the District Court for the District of Columbia. Not surprisingly, the FDA submits that this Court should follow the D.C. District Court’s approach. Whereas, the PSC urges that the Court should forge its own divergent path. The Fifth Circuit has not yet spoken on this question and neither has any other" }, { "docid": "12351899", "title": "", "text": "which has been mooted by the passage of time. The parties are ORDERED to meet and confer within thirty (30) days of this date and submit to the Court a proposed Scheduling Order that addresses all outstanding matters. Assuming the parties agree on the Scheduling Order, the Court will move with dispatch to enter it upon receipt. II. Motion to Reconsider DTCA’s Motion [106] to Reconsider and Amend asks the Court to revisit its June 2, 2006 Memorandum Opinion and Order, which denied DTCA’s motion [84] to compel the federal Department of Health and Human Services (“HHS”) to produce documents and testimony in response to a subpoena issued to HHS by DTCA. DTCA first urges the Court to reconsider its holding that HHS is not a “person” subject to subpoena under Rule 45 of the Federal Rules of Civil Procedure, in light of the Court of Appeals’ subsequent decision in Yousuf v. Samantar, 451 F.3d 248 (D.C.Cir. June 16, 2006). Yousuf held that a federal agency is a “person” for the purposes of Rule 45 and thus subject to a motion to compel under that Rule, including in cases where the United States is not a party. The Court therefore GRANTS the Motion to Amend its Opinion to reflect that an agency of the United States is a “person” for the purposes of Rule 45. At the same time, Yousuf explicitly recognized, and did nothing to displace, the applicability of each agency’s Touhy regime for handling requests for information, including subpoenas. See In re Subpoenas in SEC v. Selden, 445 F.Supp.2d 11 & nn. 6, 7 (D.D.C.2006) (Urbina, J.); Santini v. Herman, 456 F.Supp.2d 69, 71-72 (D.D.C. Oct.17, 2006) (Collyer, J.). The need to go through the Touhy process is especially important in this case, since HHS has engaged in discussions with DTCA during the pendency of these motions and has begun producing some documents. It is also apparent that the scope of DTCA’s requests for documents may have changed as a result of these discussions, and that its request for testimony may have dropped out of the picture all" }, { "docid": "1650112", "title": "", "text": "pursuant to so-called Touhy regulations, prohibits its employees from responding to a subpoena ad testificandum, without agency approval and declines to grant that approval in a given case, the requesting party must then proceed under the APA, and a federal court will review the agency’s decision under an ‘arbitrary and capricious’ standard. Chen v. Ho, 368 F.Supp.2d 97, 98 (D.D.C. 2005) (citing Houston Bus. Journal, Inc. v. Office of the Comptroller, 86 F.3d 1208, 1212 n. 4 (D.C.Cir.1996)). See also Bobreski, 284 F.Supp.2d at 73-74. Rather than challenge FEMA’s denial of his request for a waiver pursuant to the APA, Truex elected to file a motion to compel FEMA’s compliance with his subpoena. That election was improper — his only option was to proceed under the APA. B. Whether Rule 45 Applies to FEMA FEMA also argues that Truex’s subpoena should be quashed because a federal agency is not a “person” as used in Rule 45 of the Federal Rules of Civil Procedure. Opp’n and Mot. to Quash at 7. Although there appears to have been a past assumption in this Circuit “that ‘person’ in Rule 45 included the federal government, [this Circuit has] never expressly so held.” Linder, 251 F.3d at 181-82. That assumption was called into question in Al Fayed v. CIA, 229 F.3d 272 (D.C.Cir.2000). In Al Fayed, the Court of Appeals interpreted the term “person” as used in 28 U.S.C. § 1782(a), a statute that permits discovery directed to non-parties in the federal courts by parties to proceeding before foreign and international courts, to not include the federal government. Al Fayed, 229 F.3d at 273. In so holding, the court relied on the general statutory presumption that “the word ‘person’ ... does not include a sovereign absent affirmative evidence of such an inclusory intent.” Id. at 274. The court went on to explain that “[t]he presumption is not a ‘hard and fast rule of exclusion ... [but] it may be disregarded only upon some statutory intent to the contrary.’ ” Id. (quoting Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765," } ]

[ { "docid": "11492830", "title": "", "text": "does not necessarily protect prisoners against the imposition of disciplinary segregation. Id. at -, 115 S.Ct. at 2300-01. Sandin recognizes that a state may create a liberty interest, but limits such state-created liberty interests to “freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force ... nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at -, 115 S.Ct. at 2300. Thus, in the disciplinary segregation context, there is no liberty interest without an “atypical, significant” deprivation. Id. In Sandin, the Supreme Court held that an inmate (Conner) who received as punishment thirty days in segregation did not establish a liberty interest sufficient to invoke a right to due process. It relied upon three factors in determining that Conner possessed no liberty interest: 1) disciplinary segregation was little different from discretionary forms of segregation; 2) comparison between Conner’s confinement and conditions in the general population showed that Conner suffered no “major disruption in his environment”; and 3) the length of Conner’s sentence was not affected. Id. at-, 115 S.Ct. at 2301. The essential facts of this case as Williams states them are virtually indistinguishable from Sandin. Williams claims that, in violation of state procedures, he was held in disciplinary segregation for nineteen days. Like the Supreme Court in Sandin, under these circumstances we find no “atypical, significant deprivation,” and thus no liberty interest. Williams argues that his confinement was significantly more onerous than life in the general population. He says that he was locked in a closed-front cell twenty-four hours a day, he was not allowed to participate in activities available to the general population or non-segregated inmates housed in the same area, he was handcuffed whenever he left his cell, and he lacked much contact with other inmates or staff. We do not believe, however, that his catalogue of harms greatly exceeds what one could expect from prison life generally, as “[l]awful imprisonment necessarily makes unavailable many rights and privileges" } ]

[ { "docid": "20518583", "title": "", "text": "are best understood as alternative statements of the Sandin test: administrative segregation “without more” or “absent extraordinary circumstances” is administrative segregation that is merely incident to ordinary prison life, and is not an “atypical and significant hardship” under Sandin. See Pichardo, 73 F.3d at 612-13; Luken, 71 F.3d at 193. “In other words, segregated confinement is not grounds for a due process claim unless it ‘imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’ ” Hernandez, 522 F.3d at 562 (quoting Sandin, 515 U.S. at 484, 115 S.Ct. 2293); see also Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir.2013) (“Whether a prisoner has a liberty interest implicated by [segregated] confinement relies on whether the confinement imposed an ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’ ”). We must therefore apply the Sandin test and determine whether Woodfox’s continued solitary confinement at Wade constitutes “atypical and significant hardship ... in relation to the ordinary incidents of prison life,” such that a liberty interest in avoiding the deprivation arises. See Wilkinson, 545 U.S. at 223, 125 S.Ct. 2384; Sandin, 515 U.S. at 484, 115 S.Ct. 2293; Hernandez, 522 F.3d at 562-63. Our conclusion flows directly from the Supreme Court’s decisions in Sandin and Wilkinson. “In deciding whether changes to an inmate’s conditions of confinement implicate a cognizable liberty interest, both Sandin and [Wilkinson ] considered the nature of the more-restrictive confinement and its duration in relation to prison norms and to the terms of the individual’s sentence.” Harden-Bey v. Rutter, 524 F.3d 789, 792 (6th Cir.2008) (emphasis in original). In Sandin, the Supreme Court held that no liberty interest was implicated by segregated confinement for thirty days, imposed as discipline for disruptive behavior. Sandin, 515 U.S. at 485-86, 115 S.Ct. 2293. The Court found that in the circumstances of that case, segregated confinement did not “present a dramatic departure from the basic conditions of Conner’s indeterminate sentence.” Id. at 485, 115 S.Ct. 2293. The Court noted that inmates in the general population at the prison" }, { "docid": "22717148", "title": "", "text": "arising out of administrative segregation can form the basis for a constitutional violation. We cannot agree with that interpretation of Sandin. Sandin involved a § 1983 suit brought by a state prisoner against several prison officials alleging that they had violated his constitutional right to procedural due process by sentencing him to disciplinary segregation without permitting him to call certain witnesses. See 515 U.S. at 476, 115 S.Ct. 2293. The Supreme Court noted in Sandin that under the procedure previously followed, if the Due Process Clause itself did not confer a liberty interest in a particular prison situation, the federal courts would proceed to “examin[e] ... the possibility that the State had created a liberty interest by virtue of its prison regulations....” Id. at 480, 115 S.Ct. 2293 (explaining the,approach taken by the Court in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). The Supreme Court substantially modified that analysis in Sandin, holding that an examination of a state statute or regulation should not be conducted unless the challenged restraint on freedom “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484, 103 S.Ct. 864. As the Court explained: States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Id. at 483-84, 103 S.Ct. 864 (citations omitted). Applying this approach to the facts of the case before it, the Court held that “[the prisoner’s] discipline in segregated confinement did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest,” inasmuch as “[t]he regime to which [the prisoner] was subjected ... was within the range of confinement to be normally expected for one serving an indeterminate term" }, { "docid": "6473280", "title": "", "text": "N.J.A.C. 10A:20-4.21. Moreover, the Commissioner is authorized “at any time [to] transfer an inmate from one place of confinement to another.” See N.J.A.C. 10A:20-4.2. Thus, Asquith’s continued participation was dependent upon extrinsic events, and he could have no expectation that he would remain in the program once charged with a major violation. II. STATE-CREATED LIBERTY INTEREST The Due Process Clause also protects liberty interests created by the laws or regulations of a state. See Sandin, 515 U.S. at 483, 115 S.Ct. 2293. Asquith argues that under Sandin, the “polestar for identifying state-created liberty interests is the ‘nature of the deprivation’ ” and that the district court erred by failing to recognize that his life while in the community release program was “fundamentally different from incarceration behind the walls” of prison. In Sandin, the Supreme Court established a new framework for determining whether a prisoner has been deprived of a state-created liberty interest. It held that a prisoner is deprived of a state-created liberty interest only if the deprivation “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484, 115 S.Ct. 2293. Even if Asquith’s life in prison was “fundamentally different” from life at the halfway house, Sandin does not permit us to compare the prisoner’s own life before and after the alleged deprivation. Rather, we must compare the prisoner’s liberties after the alleged deprivation with the normal incidents of prison life. See Sandin, 515 U.S. at 485-86, 115 S.Ct. 2293. “[T]he baseline for determining what is ‘atypical and significant’ — the ‘ordinary incidents of prison life’ — is ascertained by what a sentenced inmate may reasonably expect to encounter as a result of his or her conviction in accordance with due process of law.” Griffin v. Vaughn, 112 F.3d 703, 706 & n. 2 (3d Cir.1997); see also Callender v. Sioux City Residential Treatment Facility, 88 F.3d 666, 669 (8th Cir.1996) (removing an inmate from a work release program and returning him to prison did not deprive the inmate of a liberty interest under Sandin because prison was “not atypical" }, { "docid": "11285127", "title": "", "text": "without due process of law_” U.S. CONST. amend. XIV, § 1. To allege a Fourteenth Amendment Due Process violation in this case, the plaintiff must allege that he was deprived of a constitutionally protected liberty interest. In determining whether state officials have deprived an inmate, such as the plaintiff, of such a protected “liberty” interest, the Supreme Court has recently instructed that: States may under certain circumstances create liberty interests which are protected by the Due Process Clause.... these interests will generally be limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Sandin v. Conner, — U.S. -, -, 115 S.Ct. 2293, 2295, 132 L.Ed.2d 418 (1995). Sandin thus held that, for an inmate to prove he was deprived of a liberty interest protected by the Fourteenth Amendment, the inmate must meet the standard of an “atypical and significant hardship ... in relation to the ordinary incidents of prison life” and generally, this has been limited to freedom from restraint. The initial question here is whether the plaintiff had a protected right not to have his dental appointment adjourned. Plaintiffs rescheduled dental appointment plainly does not meet the “atypical and significant hardship standard” articulated in Sandin. When compared to the examples given in Sandin of violated liberty interests which would satisfy this standard (involuntary commitment to a mental hospital, Vitek v. Jones, 445 U.S. 480, 491-494, 100 S.Ct. 1254, 1263-1264, 63 L.Ed.2d 552 (1980); involuntary administration of antipsychotic drugs, Washington v. Harper, 494 U.S. 210, 221-222, 110 S.Ct. 1028, 1036-1037, 108 L.Ed.2d 178 (1990)), it is clear that plaintiffs claim does not reach the severity necessary to violate the Fourteenth Amendment’s Due Process Clause. A rescheduled routine dental appointment is not atypical, nor did it pose a significant hardship to the plaintiff in relation to the ordinary incidents of prison life, nor did it involve any restraint against plaintiff; plaintiff" }, { "docid": "17405813", "title": "", "text": "less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.”); Meachum v. Fano, 427 U.S. 215, 228, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (“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.”). Prior to 1995, the existence and scope of an inmate’s liberty interest, and therefore whether there was a due process violation, was determined by the language of the applicable regulations. However, in Sandin v. Conner, the United States Supreme Court held that the touchstone of the inquiry into whether a protected liberty interest exists is whether the conditions “impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” 515 U.S. at 484, 115 S.Ct. 2293, implicitly overruled on other grounds by Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). An inmate contending that the conditions of confinement give rise to a constitutionally-protected liberty interest must show that the conditions constitute an “atypical and significant hardship” when compared to the ordinary incidents of prison life. Wilkinson, 545 U.S. at 223, 125 S.Ct. 2384. See also Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir.2006) (“[T]he Supreme Court held that a deprivation occasioned by prison conditions or a prison regulation does not reach protected liberty interest status and require procedural due process protection unless it imposes an ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’ ”) (quoting Sandin, 515 U.S. at 484, 115 S.Ct. 2293). Whether confinement “conditions impose such an atypical and significant hardship that a liberty interest exists is a legal determination....” Beverati v. Smith, 120 F.3d 500, 503 (4th Cir.1997) (citing Sandin, 515 U.S. at 485-87, 115 S.Ct. 2293). The Tenth Circuit has applied several factors in analyzing whether conditions impose such an" }, { "docid": "23638918", "title": "", "text": "regulatory “language of an ... unmistakably mandatory character”—such as that provided by IDOC rules and regulations-—was recognized as creating a liberty interest protected by the Due Process Clause. Hewitt, 459 U.S. at 471-72, 103 S.Ct. 864; see also Sandin, 515 U.S. at 481-83, 115 S.Ct. 2293; Thomas v. Ramos, 130 F.3d 754, 760 (7th Cir.1997); Williams, 71 F.3d at 1249. The Sandin Court, however, abandoned the methodology of Heivitt and its progeny, shifting the focus of the liberty interest inquiry away from the nature of the statutory and regulatory language and toward the nature of the deprivation actually suffered by the prisoner. Thus, today, a prisoner’s liberty interest, and incumbent entitlement to procedural due process protections, generally extends only to freedom from deprivations that “impose! ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483-84, 115 S.Ct. 2293. In the absence of such “atypical and significant” deprivations, the procedural protections of the Due Process Clause will not be triggered. Now much hinges upon what constitutes an “atypical and significant hardship,” and the Sandin Court again provides guidance. In finding that the placement of the plaintiff-prisoner in disciplinary segregation for thirty days did not constitute an “atypical and significant hardship,” the Sandin Court relied upon three factors. First, the prisoner’s “disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody.” Sandin, 515 U.S. at 486, 115 S.Ct. 2293. Second, “a comparison between inmates inside and outside disciplinary segregation [revealed that] the State’s action in placing [plaintiff in disciplinary segregation] for 30 days did not work a major disruption in his environment.” Id. Finally, “the State’s action [would not] inevitably affect the duration of [plaintiffs] sentence.” Id. at 487, 115 S.Ct. 2293. Accordingly, courts today charged with assessing whether conditions of confinement pose an atypical and significant hardship are in essence counseled by Sandin to (1) compare the conditions of disciplinary segregation to those of discretionary segregation; (2) compare the conditions of disciplinary segregation to those in the general prison population; and (3)" }, { "docid": "7775744", "title": "", "text": "found not to have violated any substantive right”). The disposition of this appeal, therefore, hinges on whether defendants violated plaintiffs procedural. due process rights. A. It is well-established that “[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); see Erickson v. United States, 67 F.3d 858, 861 (9th Cir.1995) (“ ‘[a] due process claim is cognizable only if there is a recognized liberty or property interest at stake’ ”) (quoting Schroeder v. McDonald, 55 F.3d 454, 462 (9th Cir.1995)). [TJhese interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Sandin, 515 U.S. at 483, 115 S.Ct. 2293 (citations omitted) (emphasis added). Defendants do not argue that plaintiff was afforded a fair hearing. Rather, defendants argue that plaintiff cannot be heard to complain that his disciplinary process violated due process because he has not demonstrated the existence of a “liberty interest” as required by the Court in Sandin. The essence of defendants’ argument is that inmates must demonstrate the existence of a liberty interest before they can argue that they are entitled to procedural due process. See Erickson, 67 F.3d at 861. Moreover, defendants argue that plaintiff was not entitled to relief in the district court because (1) the Supreme Court has generally limited a prisoner’s “liberty interests” to those restraints which “impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” Sandin, 515 U.S. at 483, 115 S.Ct. 2293; (2) the district court concluded that plaintiff suffered no such atypical hardship; and (3) the plaintiff has not contested this conclusion. We disagree. B. It is true that “once society has validly convicted an individual of a crime and" }, { "docid": "6473281", "title": "", "text": "inmate in relation to the ordinary incidents of prison life.” Id. at 484, 115 S.Ct. 2293. Even if Asquith’s life in prison was “fundamentally different” from life at the halfway house, Sandin does not permit us to compare the prisoner’s own life before and after the alleged deprivation. Rather, we must compare the prisoner’s liberties after the alleged deprivation with the normal incidents of prison life. See Sandin, 515 U.S. at 485-86, 115 S.Ct. 2293. “[T]he baseline for determining what is ‘atypical and significant’ — the ‘ordinary incidents of prison life’ — is ascertained by what a sentenced inmate may reasonably expect to encounter as a result of his or her conviction in accordance with due process of law.” Griffin v. Vaughn, 112 F.3d 703, 706 & n. 2 (3d Cir.1997); see also Callender v. Sioux City Residential Treatment Facility, 88 F.3d 666, 669 (8th Cir.1996) (removing an inmate from a work release program and returning him to prison did not deprive the inmate of a liberty interest under Sandin because prison was “not atypical of what inmates have to endure in daily prison life”); Dominique v. Weld, 73 F.3d 1156, 1159-60 (1st Cir.1996) (same). Since an inmate is normally incarcerated in prison, Asquith’s return to prison did not impose atypical and significant hardship on him in relation to the ordinary incidents of prison life and, therefore, did not deprive him of a protected liberty interest. CONCLUSION Because Asquith did not have a protected liberty interest in remaining in the halfway house, either under the Due Process Clause or under state law, the district court properly granted summary judgment and dismissed Asquith’s claim for deprivation of due process. AFFIRM." }, { "docid": "11435878", "title": "", "text": "interest, Kitchen first would have to demonstrate that prisoners enjoy a protected liberty interest in work release under Virginia law. See Beverati v. Smith, 120 F.3d 500, 502 (4th Cir.1997). We employ the standard set forth in Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), to determine whether state law creates a liberty interest that affords prisoners due process protection. In Sandin, the Court reconsidered its reasoning in previous cases, particularly Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), in which the recognition of a liberty interest turned on whether the statute or regulation at issue used mandatory or discretionary language. Sandin, 515 U.S. at 480, 115 S.Ct. 2293. Such inquiries, said the Court, discourage state officials from codifying their administrative procedures and inappropriately involve federal courts in managing prisons. Sandin, 515 U.S. at 482, 115 S.Ct. 2293. Instead, the Court concluded that States may still create liberty interests that afford prisoners due process protections, but explained: [Tjhese interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force ..., nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. 515 U.S. at 484, 115 S.Ct. 2293. (internal citations omitted). Applying this standard, the Court in Sandin held that an internal prison disciplinary sentence of a prisoner to 30 days in segregated confinement did not present the type of “atypical, significant deprivation” in which a State might create a liberty interest. Sandin, 515 U.S. at 486, 115 S.Ct. 2293. Kitchen does not contend that the temporary withholding of permission to participate in work release gives rise to the protection of the Due Process Clause by its own force. Thus, the question is whether denial of work-release status imposed on Kitchen an “atypical and significant hardship in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115 S.Ct. 2293. Two cases from our sister" }, { "docid": "22642186", "title": "", "text": "clause provides prisoners two separate sources of protection against unconstitutional state disciplinary actions. First, a prisoner may challenge a disciplinary action which deprives or restrains a state-created liberty interest in some “unexpected manner.” Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Ramirez’s claimed loss of a liberty interest in the processing of his appeals does not satisfy this standard, because inmates lack a separate constitutional entitlement to a specific prison grievance procedure. Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988). Accordingly, Ramirez’s claim lacks the necessary constitutional foundation, and thus does not extend his confinement in an unexpected manner. Second, a prisoner may challenge a state action which does not restrain a protected liberty interest; but which nonetheless imposes some “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115 S.Ct. 2293; Keenan v. Hall, 83 F.3d 1083, 1088 (9th Cir.1996). If the hardship is sufficiently significant, then the court must determine whether the procedures used to deprive that liberty satisfied Due Process. Sandin, 515 U.S. at 484, 115 S.Ct. 2293; Keenan, 83 F.3d at 1089. There is no single standard for determining whether a prison hardship is atypical and significant, and the “condition or combination of conditions or factors ... requires case by ease, fact by fact consideration.” Keenan, 83 F.3d at 1089. Three guideposts cited in Sandin’s analysis, however, provide a helpful framework: 1) whether the challenged condition “mirrored those conditions imposed upon inmates in administrative segregation and protective custody,” and thus comported with the prison’s discretionary authority; 2) the duration of the condition, and the degree of restraint imposed; and 3) whether the state’s action will invariably affect the duration of the prisoner’s sentence. Sandin, 515 U.S. at 486-87, 115 S.Ct. 2293; Keenan, 83 F.3d at 1089. In the present case, the District Court did not consider whether Ramirez’s disciplinary segregation imposed an atypical and significant hardship warranting additional Due Process protections during his hearing. Although we cannot determine from the present record whether his administrative segregation imposed" }, { "docid": "15026129", "title": "", "text": "or regulations at issue narrowly restrict the power of prison officials to impose the deprivation—giving the inmate the right to avoid it—and (2) the liberty in question is one of “real substance”. Sandin, — U.S. at -, 115 S.Ct. at 2298. Because it is undisputed that the state regulations at issue here narrowly restricted defendants’ right to impose a disciplinary sentence on the plaintiff, my inquiry must determine whether the liberty interest alleged to have been violated was one of “real substance,” e.g. freedom from state action that will “inevitably affect the duration of [a] sentence,” or restraint that imposes “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at -, 115 S.Ct. at 2300. The Sandin Court found that 30 days of disciplinary segregation was “within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life” in a maximum security prison. Thus, Mr. Sandin’s disciplinary sentence was held not to be “atypical and significant” Id. at -, 115 S.Ct. at 2301. Where an inmate served a substantial portion of a disciplinary sentence in SHU before a successful appeal, however, the Second Circuit has previously recognized that such sentences might constitute compensable deprivations of a liberty interest. Walker v. Bates, 23 F.3d 652, 658-59 (2d Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 2608, 132 L.Ed.2d 852 (1995). Walker had served 73 days of a 120 day sentence of confinement. In the instant case, plaintiff served over one year of a two year sentence in SHU before his release. In relation to the ordinary incidents of prison life, I find that plaintiff Lee’s confinement for 376 days in SHU imposed an atypical and significant hardship on plaintiff. Thus, plaintiff has sufficiently alleged a liberty interest, even under the new light of Sandin. C. THE DUE PROCESS VIOLATION Where a prisoner establishes a protected liberty interest of real substance, he is entitled to the procedural protections as set forth by the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41" }, { "docid": "13199784", "title": "", "text": "[v. Jones], 445 U.S. [480,] 493 [, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980)] (transfer to mental hospital), and Washington [v. Harper], 494 U.S. [210,] 221-22 [, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990)] (involuntary administration of psychotropic drugs), nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Sandin, 515 U.S. at 483-84, 115 S.Ct. 2293 (citation omitted) (emphasis added). The Sandin majority did not find a sentence of thirty days in segregation confinement in Hawaii’s penal system to be “atypical” because the plaintiffs “confinement did not exceed similar, but totally discretionary confinement in either duration or degree of restriction.” Sandin, 515 U.S. at 486, 115 S.Ct. 2293. The Sandin Court emphasized that Hawaii’s prison regulations gave prison officials broad discretion to impose both disciplinary and nonpunitive segregation upon inmates. Moreover, the conditions of disciplinary segregation in Hawaii, “with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody,” and the State, in its administrative appellate process, expunged the plaintiffs disciplinary record. Id. Although it might have intended to eliminate the allegedly mechanical hurdles created by Hewitt, the new approach required by Sandin simply has added a new, and complex, requirement to finding the creation of a liberty interest: a plaintiff must now show that the challenged confinement or restraint imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115 S.Ct. 2293. If a prisoner has been subjected to an “atypical and significant hardship,” the court then inquires whether state law has created a liberty interest, in the same manner as before Sandin. See Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996) (“To prevail [in establishing a due process violation, a plaintiff] must establish both that the confinement or restraint creates an ‘atypical and significant hardship’ under Sandin, and that the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint.”) The defendants maintain that under San-din no period of" }, { "docid": "15447878", "title": "", "text": "liberty interests protectable under the Due Process Clause by statute, regulation, or policy, when loss of those interests would constitute a grievous deprivation. Sandin, 515 U.S. at 483-84, 115 S.Ct. 2293. Thus, if an inmate has not suffered a deprivation so severe as to violate the Due Process Clause by its own force, the inmate must, in the intra-prison disciplinary context, show both an atypical and significant de privation and a source for entitlement to protection of that interest in state law or policy. The requirement that the deprivation be “atypical and significant ... in relation to the ordinary incidents of prison life” is a refinement of Morrissey’s grievous loss of liberty standard for the intra-prison disciplinary situation. Nor does Sandin create a test for identifying a liberty interest different from that set out in Morrissey, Wolff, and Mea-chum. After drawing the appropriate test from Wolff and Meachum, the Sandin court indicated that in the intra-prison disciplinary context, deprivation of a state-created liberty interest generally must impose an atypical and significant hardship “in relation to the ordinary incidents of prison life” in order to trigger due process protection. Sandin, 515 U.S. at 484, 115 S.Ct. 2293. Sandin’s reliance on Wolff, which found an important liberty interest in the retention of good time credits, and its earlier citation with approval of Morrissey, a parole revocation case, negate any suggestion that Sandin’s particularized test should be applied outside the intra-prison disciplinary context. Because Anderson, like the petitioners in Morrissey and the plaintiffs in Tracy, lived outside the prison, a comparison to the ordinary conditions of prison life is inappropriate. Morrissey itself established that once the State has given an inmate the freedom to live outside an institution, it cannot take that right away without according the inmate procedural due process. Defendants also argue, relying on Richardson v. Selsky, 5 F.3d 616 (2d Cir.1993), that because there was a split in the district courts concerning the impact of San-din on Tracy, they are entitled to qualified immunity. The district courts did indeed differ on the impact of Sandin. However, we do not agree" }, { "docid": "10870467", "title": "", "text": "the ordinary incidents of prison life. Sandin, swpra at 474, 115 S.Ct. 2293. (emphasis supplied). Thus, to- prevail on a due process claim in this post-Sandin era, an inmate must establish both that the confinement or restraint creates an “atypical and significant hardship in relation to ordinary incidents of prison life” and that the state has, by regulation or statute, granted its inmates a protected liberty interest in remaining free from that confinement or restraint. Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996). With respect to the first prong, that is whether the conditions of confinement were “atypical and significant”, the Second Circuit has expressed the view that fact-finding will ordinarily be necessary. Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir.1997) (“[I]n a series of decisions ... we have indicated the desirability of fact-finding before determining whether a prisoner has a liberty interest in remaining free from segregated confinement”). While the need for fact-finding may be apparent, the parameters of Sandin fact-finding hearings are far from settled. Indeed, within the last month, the Second Circuit has resolved two difficult legal issues that divided the parties during the fact-finding hearing held in this case. 1. Sandin’s Applicability to NonDisciplinary Segregation: At issue in San-din was the procedural due process rights of an inmate placed in segregation for disciplinary or punitive reasons. The Supreme Court concluded that the disciplinary confinement of an inmate for thirty days “did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest.” Sandin v. Conner, 515 U.S. at 474, 115 S.Ct. 2293. (emphasis supplied). In so holding, the Sandin majority noted that the conditions found in disciplinary confinement “mirrored those conditions imposed upon inmates in administrative segregation and protective custody” and therefore the confinement was not “atypical” in relation to the “ordinary” or expected incidents of prison life. Id at 486, 115 S.Ct. 2293. The Court’s specific reference to administrative segregation as “typical” of what can normally be expected as an incident of prison life prompted some courts to question whether administrative or non-disciplinary segregation could ever" }, { "docid": "15447877", "title": "", "text": "Hurston, 182 F.3d 113 (2d Cir.1999), indicating that Sandin placed Tracy in some doubt, id. at 117. Defendants first argue that Sandin found statutes and regulations irrelevant to the existence of a liberty interest and imposed as the sole test whether “the alleged deprivation ‘imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’ ” Defs.’ Br. at 10 (quoting Sandin, 515 U.S. at 484, 115 S.Ct. 2293). Defendants also argue that Sandin created a more stringent test than grievous loss to establish that a prisoner had been deprived of a liberty interest. Because Tracy relied on a grievous deprivation and on prison policies, defendants suggest that Sandin undermined both aspects of Tracy. Defendants’ argument fails on both counts. First, Sandin did not dispense with statutory or regulatory language creating an entitlement. It simply held that the regulation at issue in that case did not create a liberty interest because the plaintiff had not shown an atypical or significant deprivation. The Court specifically recognized that states can create liberty interests protectable under the Due Process Clause by statute, regulation, or policy, when loss of those interests would constitute a grievous deprivation. Sandin, 515 U.S. at 483-84, 115 S.Ct. 2293. Thus, if an inmate has not suffered a deprivation so severe as to violate the Due Process Clause by its own force, the inmate must, in the intra-prison disciplinary context, show both an atypical and significant de privation and a source for entitlement to protection of that interest in state law or policy. The requirement that the deprivation be “atypical and significant ... in relation to the ordinary incidents of prison life” is a refinement of Morrissey’s grievous loss of liberty standard for the intra-prison disciplinary situation. Nor does Sandin create a test for identifying a liberty interest different from that set out in Morrissey, Wolff, and Mea-chum. After drawing the appropriate test from Wolff and Meachum, the Sandin court indicated that in the intra-prison disciplinary context, deprivation of a state-created liberty interest generally must impose an atypical and significant hardship “in relation to" }, { "docid": "174945", "title": "", "text": "1996, a period of approximately two and one-half years, violated the Due Process Clause. Plaintiff has not challenged his continued confinement in administrative segregation since the January 1996 hearing. In order to determine whether segregation of an inmate from the general prison population involves the deprivation of a state-created liberty interest protected by the due process clause, courts are to determine if the segregation imposes an “atypical and significant” hardship on the inmate “in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 483, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Plaintiff contends that the extraordinarily long time during which he has been held in segregation establishes the “atypical and significant” hardship necessary under Sandin to create a liberty interest. First, administrative segregations have repeatedly been held not to involve an “atypical and significant” hardship implicating a protected liberty interest without regard to duration. See, e.g., Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir.1995); Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir.), cert. denied, — U.S. -, 118 S.Ct. 136, 139 L.Ed.2d 84 (1997). Second, we note that under Ohio law, administrative segregation may continue for an “indefinite time period.” Ohio Admin. Code § 5120-9-13(A). Admittedly, few cases of segregation extend to the length of plaintiffs stay here. However, we agree with the district court that under Sandin a liberty interest determination is to be made based on whether it will affect the overall duration of the inmate’s sentence and there is no evidence here that the segregation will impact plaintiffs sentence. The “atypical” length of plaintiffs stay in administrative segregation is with good reason. First he was placed in security control with all other transferred inmates. He then remained in administrative segregation for the duration of the investigation into the riots in which he played a significant role. At the conclusion of the investigation it was determined, after a hearing, that he had violated a prison rule by committing murder. It is not “atypical” for a prisoner to be in segregation while his or her participation in violent conduct inside the prison" }, { "docid": "21103208", "title": "", "text": "compulsion. 2. Analyzing Compulsion Determining whether the challenged policy or action is compulsory for Fifth Amendment purposes is a difficult task that depends upon consideration of many factors. There is no single test or factor that is dispositive, so we begin by examining Defendants’ arguments. a. The Sandin Analysis Defendants argue that no compulsion exists because the adverse consequences present in this case implicate no protected liberty interest. Specifically, they claim that the Fifth Amendment is not violated because the consequences that would be imposed on Plaintiff as a result of his refusal to admit responsibility and disclose his past sex offenses do not constitute “atypical and significant hardship[s] on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). In Sandin, the Supreme Court addressed liberty interests in prison in the context of a procedural due process claim. The Court held that, despite the mandatory language of the applicable prison regulation, a constitutionally protected liberty interest will generally be “limited to freedom from restraint which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484, 115 S.Ct. 2293 (citations omitted). Applying this test, the Court held that being placed in disciplinary segregation for thirty days did not impose an atypical and significant hardship, and therefore the inmate had no protected liberty interest which required due process. See id. at 486, 115 S.Ct. 2293. Relying on earlier Supreme Court precedent, Meachum, v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), this court recognized that, under the Due Process Clause, a change in “an inmate’s prison classification ordinarily does not deprive him of liberty[] because he is not entitled to a particular degree of liberty in prison.” Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.1994). However, nowhere in the relevant jurisprudence does the Supreme Court even hint that an individual attempting to show a violation of his Fifth Amendment privilege must have a protected liberty interest for compulsion to occur." }, { "docid": "23461204", "title": "", "text": "Phillips argues that his due process rights were violated by disciplinary confinement without a hearing. He argues that his liberty interests were infringed because he was not given the opportunity to be heard concerning the alleged infraction and that this failure to provide a hearing constituted an “atypical and significant hardship” in relationship to the “ordinary incidents of prison life,” as recognized by Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). In order to prevail on a Fourteenth Amendment due process claim, Phillips must first demonstrate that he was deprived of life, liberty or property by government action. Singleton v. Cecil, 155 F.3d 983, 987 (8th Cir.1998); Beverati v. Smith, 120 F.3d 500, 502 (4th Cir.1997). There is no question that Phillips was not deprived of life or property. Thus he must identify a liberty interest in order to sustain his due process claim. The Supreme Court laid out the test for determining liberty interests in a prison setting in Sandin, 515 U.S. at 483-84, 115 S.Ct. 2293. States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Id. (citations omitted). In this context, there is no federal constitutional liberty interest in having state officers follow state law or prison officials follow prison regulations. Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir.1996). Rather, any liberty interest must be an interest in the nature of the prisoner’s confinement, “not an interest in the procedures by which the state believes it can best determine how he should be confined.” Id. Thus, Phillips is incorrect in asserting that the denial of a hearing should be considered when determining whether a liberty interest was affected. In order to determine whether an inmate possesses a liberty interest," }, { "docid": "23212212", "title": "", "text": "upon them or that otherwise violated the Constitution, and therefore no liberty interest created by the Due Process Clause itself was impinged. See Hewitt, 459 U.S. at 468, 103 S.Ct. 864 (“It is plain that the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.”). The defendants are also unable to demonstrate that they were deprived of a state-created liberty interest. In Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supreme Court set out the standard for determining whether a prisoner has been deprived of a state-created liberty interest. These interests are “generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, ... nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id.) see also Shoots, 213 F.3d at 143; Asquith, 186 F.3d at 412. In ascertaining whether something is an “atypical and significant” hardship, we must consider “what a sentenced inmate may reasonably expect to encounter as a result of his or her conviction in accordance with due process of law.” Asquith, 186 F.3d at 412 (quoting Griffin v. Vaughn, 112 F.3d 703, 706 & n. 2 (3d Cir.1997)). Consequently, the focus of this inquiry should not be on the language of a particular regulation, but rather on the nature of the deprivation. See Sandin, 515 U.S. at 481-82, 115 S.Ct. 2293. Although inmates who are transferred to the STGMU face additional restrictions, we hold that the transfer to the STGMU does not impose an atypical and significant hardship in relation to the ordinary inci dents of prison life. See Griffin, 112 F.3d at 706-08 (15 months in administrative segregation not atypical and significant hardship); see also, e.g., Jones v. Baker, 155 F.3d 810, 813 (6th Cir.1998) (confinement in administrative segregation for two and one-half years is not “atypical and significant” hardship); Pichardo" }, { "docid": "11435879", "title": "", "text": "freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force ..., nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. 515 U.S. at 484, 115 S.Ct. 2293. (internal citations omitted). Applying this standard, the Court in Sandin held that an internal prison disciplinary sentence of a prisoner to 30 days in segregated confinement did not present the type of “atypical, significant deprivation” in which a State might create a liberty interest. Sandin, 515 U.S. at 486, 115 S.Ct. 2293. Kitchen does not contend that the temporary withholding of permission to participate in work release gives rise to the protection of the Due Process Clause by its own force. Thus, the question is whether denial of work-release status imposed on Kitchen an “atypical and significant hardship in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115 S.Ct. 2293. Two cases from our sister circuits have, under Sandin, rejected the contention that once an inmate has been given work release he thereby acquires a liberty interest in retaining that status. In Dominique v. Weld, 73 F.3d 1156 (1st Cir.1996), an inmate was, for various penalogical reasons, summarily removed from a work-release program and sent to a medium security prison after having successfully participated in work release for four years. The First Circuit held that because confinement within the prison walls of the medium security prison was an ordinary incident of prison life, the prisoner did not enjoy a constitutionally protected liberty interest in work release. See Dominique, 73 F.3d at 1160. Likewise, in Callender v. Sioux City Residential Treatment Facility, 88 F.3d 666 (8th Cir.1996), the inmate’s work-release status was revoked when he refused to admit his crime, a condition of maintaining work-release status. Reasoning that the inmate was returned to the same facility from which he had left upon being granted work release several months before, the court found revocation of his work-release status imposed neither an atypical" } ]

[ { "docid": "12044837", "title": "", "text": "the complaint. BUCKLEY, Circuit Judge, concurring in the result: For the reasons stated in Section III of the majority opinion, I agree that summary judgment was properly entered against appellant Gladys Banks because she failed to support her opposition to appellee’s motion for summary judgment with evidence sufficient to create a contested issue of fact. I cannot agree, however, with the reasoning in Section II of the majority opinion. As an initial matter, I believe that the majority’s conclusion that Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 1254 (1985), requires us to borrow the District of Columbia’s three-year catchall statute of limitations, D.C. Code § 12-301(8) (1981), for section 1981 actions brought in the District disregards the rationale of Garcia. If I agreed that Garcia applies in this case, I would join our three sister circuits that have decided the issue in the section 1983 context by ruling that Garcia requires us to borrow the local limitations period governing tort claims for intentional rather than negligent personal injury. Thus, in this case I would borrow the one-year limitations period for intentional personal injuries provided by D.C. Code § 12-301(4), rather than the three-year catch-all period of D.C. Code § 12-301(8). More fundamentally, however, I do not believe that Garcia’s directive that courts adopt personal injury statutes in cases brought under 42 U.S.C. § 1983 (1982) applies at all in this case. Unlike the claim in Garcia, which was asserted under section 1983, appellant’s claim is brought under 42 U.S.C. § 1981. The historical background and objectives of section 1981 are entirely different from those of section 1983, and therefore the reasons articulated in Garcia for borrowing personal injury limitations periods are not applicable in the section 1981 context. Accordingly, I conclude that Garcia does not prevent us from adopting the most analogous local statute of limitations, which in the District of Columbia is the one-year limitations period provided by the D.C. Human Rights Act, D.C. Code § 1-2544. This conclusion is supported by the Supreme Court’s pre-Garcia suggestion that section 1981 claims ordinarily should be governed" } ]

[ { "docid": "21581840", "title": "", "text": "WILLIAM A. NORRIS, Circuit Judge: Appellant Paula Del Percio appeals from the district court’s dismissal of her § 1983 action against the Capistrano Unified School District and several of its officials for attempting to have her teaching credential revoked. The district court held that Del Percio’s damage claims were barred by the statute of limitations and her claim for declaratory and injunctive relief was not ripe for adjudication. We affirm. In Usher v. City of Los Angeles, 828 F.2d 556 (9th Cir.1987), we held that Cal.Civ.Proc.Code § 340(3) (West Supp.1987) establishes the relevant statute of limitations period for § 1983 actions-one year from the date of accrual. Id. at 558 (applying Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), which held that § 1983 actions must be brought within the time specified by the forum state’s statute of limitations for personal injury torts). Thus, unless the Supreme Court’s recent decision in Owens v. Okure, — U.S. -, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), has overruled Usher, the relevant statute of limitations period is one year. If the one-year limitations period applies, then Del Percio’s damage claims are barred; she did not file suit until September 26, 1986, even though her cause of action against the defendants accrued no later than March 22, 1984. We believe that Owens in no way undermines our decision in Usher. Owens establishes that when a state has one or more statutes of limitations for certain enumerated intentional torts, as is the case in California, the statute of limitations for § 1983 actions is “the residual or general personal injury statute of limitations.” 109 S.Ct. at 574. There can be no question that § 340(3) is California’s residual or general personal injury statute since the section contains an express “catchall” provision, covering any “injury to or ... death of one caused by the wrongful act or neglect of another.” Thus, Owens only reinforces our decision in Usher that § 340(3) is the applicable statute of limitations for § 1983 actions in California. Since Del Percio’s complaint was filed more than" }, { "docid": "9443524", "title": "", "text": "to state personal injury statutes to determine the appropriate statute of limitations for section 1983 claims, adopted in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), to section 1981 claims); see also Banks v. Chesapeake and Potomac Telephone Co., 802 F.2d 1416, 1421-22 (D.C.Cir.1986) (same). The Supreme Court has held that in states with multiple statutes of limitations, claims under section 1983 are governed by the residual or general personal injury statute of limitations (like section 12-301(8)), rather than the statute of limitations for enumerated intentional torts (like section 12-301(4)). See Owens v. Okure, 488 U.S. 235, 243-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). Accordingly, section 12-301(8)’s three-year statute of limitations applies to all section 1981 claims. Because Carney filed suit approximately one year after her discharge, her section 1981 retaliation claim is not barred. Exactly when her claim accrued — and thus whether her DCHRA claim might be barred by the DCHRA’s one-year statute of limitations — amounts to a disputed issue of material fact that the district court should resolve at trial. Although we affirm the district court’s grant of summary judgment for the University on Carney’s discrimination claims, we reverse with respect to her retaliation claims and remand them for trial. So ordered." }, { "docid": "1398640", "title": "", "text": "the most appropriate or analogous state statute of limitations.” Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 2620, 96 L.Ed.2d 572 (1987) (involving section 1981 claim). The U.S. Supreme Court in Wilson v. Garcia, 471 U.S. 261, 277-79, 105 S.Ct. 1938, 1948-49, 85 L.Ed.2d 254 (1985), concluded that section 1983 claims are best characterized as personal injury actions for purposes of selecting the most appropriate state statute of limitations and thus should be governed by the analogous state statute of limitations for personal injury actions. Similarly, the Court in Goodman found that the rationale in Wilson was equally applicable to causes of action brought under section 1981. Goodman, 482 U.S. at 661, 107 S.Ct. at 2621. Hence, section 1981 claims are also controlled by state statutes of limitations for personal injury actions. Id. The California statute of limitations for personal injuries is set out in Civil Procedure Code section 340(3). Section 340(3) requires that an action for personal injury be filed within one year of the alleged injury. In this case, defendants argue that the injury which Mitchell complains of occurred August 8, 1990 and that this complaint was filed July 22,1992. Thus, defendants conclude that the statute of limitations has run. Plaintiff rejects this argument. Rather, plaintiff claims that neither the Supreme Court nor the Ninth Circuit has addressed the issue in this case — what is the limitations period for section 1982? Mitchell maintains that just because Wilson involves section 1983 and Goodman concerns section 1981, it does not follow that a section 1982 limitations period analysis would be identical. Plaintiff argues that section 1982 seeks to redress a different type of wrongful conduct than sections 1981 and 1983, and thus deserves a different statute of limitations. Mitchell maintains that section 1982 is most similar to the Unruh Act and the limitations period, as argued by plaintiff below, is either a three or four year period. However, plaintiffs position is unavailing. The bootstrapping approach to the Unruh Act is unhelpful. As discussed below, the parties claim that no California court has determined the appropriate" }, { "docid": "13870412", "title": "", "text": "current MRDDA policy of consenting to elective surgeries on MRDDA customers; and (3) declare that the policy of the District of Columbia consenting to elective surgeries on MRDDA customers has been and remains illegal. Pis.’ Summ. J. Mot. at 1-2. 1. Statute of Limitations and Doctrine of Laches The District contends that most of the class members’ claims, as well as the claims of all three plaintiffs, are barred by the statute of limitations and the doctrine of laches, and as such, summary judgment is inappropriate. Like many federal statutes, 42 U.S.C. § 1983 does not contain a statute of limitations. In such situations, it is well settled that federal courts may “borrow” a limitations period from an analogous state cause of action to the extent that the state limitations period is not inconsistent with the underlying federal interests at stake. Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Spiegler v. District of Columbia, 866 F.2d 461, 463-64 (D.C.Cir.1989). The District contends that plaintiffs’ Section 1983 claims are most analogous to an action in battery, and therefore the one-year limitation in D.C.Code § 12-301(4) should be applied. Def.’s Summ. J. Mot. at 4. This argument misconstrues plaintiffs’ complaint; the thrust of the complaint in this action is not that the District inflicted an unlawful touching on each of the named plaintiffs and the class members, but rather that the District violated their constitutional due process rights. Accordingly, the court finds that D.C.Code § 12-301(8), which imposes a three-year statute of limitations on actions where “a limitation is not otherwise prescribed,” is the relevant District of Columbia limitations period. See Carney v. American Univ., 151 F.3d 1090, 1096 (D.C.Cir.1998) (citing Owens v. Okure, 488 U.S. 235, 243-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989)) (stating that three-year residual statute of limitations applies to Section 1983 claims). Moreover, under D.C.Code § 12-302(a), the statute of limitations in a civil action is tolled for a person who is non compos mentis. While the D.C.Code does not define non compos mentis, “the phrase ... generally refers to someone" }, { "docid": "16982737", "title": "", "text": "looked to for the applicable statute of limitations. See Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). In a federal question case, however, where no federal statute supplies a time period for the particular claim, as such is the case here, the applicable period is “the state law of limitations governing an analogous cause of action.” Board of Regents v. Tomanio, 446 U.S. 478, 483, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); see also Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987) (“Because § 1981, like §§ 1982 and 1983, does not contain a statute of limitations, federal courts should select the most appropriate or analogous state statute of limitations”). The Supreme Court, following the rationale of Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), which analyzed which state statute of limitations should apply to Section 1983 actions, stated that Section 1981 has a much broader focus than simply contractual rights and was basically a personal injury action like Section 1983. See Goodman, 482 U.S. at 661, 107 S.Ct. 2617. Therefore, the state statute of limitations period for personal injury actions should be borrowed in Section 1981 cases. See id. at 661-62, 107 S.Ct. 2617. In New York, the applicable statute of limitations in a federal civil rights case, including claims brought under Section 1981, is three years. See Wilson v. Fairchild Republic Co., Inc., 143 F.3d 733, 739 n. 5 (2d Cir.1998) (“Section 1981 employment discrimination claims brought in New York are subject to that state’s three-year statute of limitations.”); see also Tadros v. Coleman, 898 F.2d 10, 12 (2d Cir.1990), cert. denied, 498 U.S. 869, 111 S.Ct. 186, 112 L.Ed.2d 149 (1990); Keyse v. California Texas Oil Corp., 590 F.2d 45, 47 (2d Cir.1978) (“The applicable statute of limitations in a federal civil rights case brought in New York is the three years provided by N.Y.C.P.L.R. § 214(2) liability based on a statute.”); Findlay v. Reynolds Metals Co., 82 F.Supp.2d 27, 36 (N.D.N.Y.2000). Plaintiff argues that this Court" }, { "docid": "9712676", "title": "", "text": "(quoting 29 U.S.C. § 151 (1982)). Thus, after Reed, we may no longer apply the six-month unfair labor practice statute of limitations of § 10(b) to non-collective bargaining issues being litigated between a union and one of its disaffected members. In considering what other statute of limitations, if any, to invoke, however, we must characterize the nature of the relationship which the plaintiff alleges has been violated. Only then can we adequately determine whether Ms. Colmenares (or the Secretary) claims personal injury at the hands of the union, breach of a contractual relationship, a civil rights violation, or the like. In order to settle upon the most appropriate statute of limitations, the most suitable analogy is to be found in those Supreme Court cases that have steadfastly applied state personal injury statutes of limitation whenever a statutory violation of 42 U.S.C. §§ 1981, 1983, or 1985 has occurred. Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) (general personal injury statute of limitations governs § 1983 claims); Goodman v. Lukens Steel, 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987) (personal injury statute of limitations governs § 1981 claims); Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Pratt v. Thornburgh, 807 F.2d 355 (3d Cir.1986), cert. denied, 484 U.S. 839, 108 S.Ct. 125, 98 L.Ed.2d 83 (1987) (personal injury statute of limitations governs § 1985 claims). But even if I am in error in selecting the personal injury statute — and I do not think I am — the alternative is not “no statute of limitations” as espoused by the majority, but rather New Jersey’s residual contract statute of limitation of six years. Because the union/union member relationship is essentially a contract, a union may, for example, seek to enforce its rules against members and may assume that contractual mutual reliance operates between a union and its members. In the instant case, it could be argued that Ms. Colmenares’s right to copies of her union’s various contract agreements with other companies may be inferred from her contractual rights as a" }, { "docid": "10226492", "title": "", "text": "relevant part: Except as provided by Sections 16.010, 16.0031,- and 16.0045, a person must bring suit for trespass for injury to the estate or to the property of another, conversion of personal property, taking or detaining the personal property of another, personal injury, forcible entry and detainer, and forcible detainer not later than two years after the day the cause of action accrues. Tex. Civ. PRAC. & Rem.Code Ann. § 16.003(a). Reference to Section 16.0045 of the statute, however, reveals that causes of action stemming from sexual assault are governed by a longer, five-year limitations period. See id. § 16.0045(b). Plaintiffs argue on appeal that, because their Title IX and § 1983 claims are based on the sexual abuse of A.W., the district court should have applied the longer limitations period from Section 16.0045 to those claims. We disagree. In Wilson v. Garcia, the Supreme Court held that § 1983 claims are subject to state personal injury statutes of limitations. 471 U.S. 261, 280, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), partially superseded by statute as stated in Jones, 541 U.S. at 377-80, 124 S.Ct. 1836. Then, in Owens v. Okure, the Supreme Court refined Wilson and held that “where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions.” 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). Following Wilson and Owens, we have recognized that Texas’s two-year statute of limitations for personal injury actions applies to § 1983 claims filed in the state. See Piotrowski v. City of Houston, 51 F.3d 512, 515 n. 5 (5th Cir.1995). As a preliminary matter, we must now determine whether Title IX claims should be treated like § 1983 claims and governed by state statutes of limitations for personal injury actions. If so, we must address Plaintiffs’ argument that properly applying the Texas personal injury statute to the claims in this case means applying the longer period from Section 16.0045 rather than the two-year period from Section 16.003. 1. The Statute of Limitations" }, { "docid": "3990226", "title": "", "text": "ERISA benefits pursuant to 29 U.S.C. § 1132(a)(1)(B) (1988) is the Missouri statute limiting suits against trustees. See Mo.Ann.Stat. § 456.220 (Vernon Supp. 1991). The Supreme Court has already considered the problem with which we now struggle in a different context. Prior to Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), the lower courts, in borrowing state statutes of limitation for actions brought under 42 U.S.C. § 1983 (1988), focused on the nature of the particular claim at issue, a practice which “bred confusion and inconsistency in the lower courts and generated time-consuming litigation.” Owens v. Okure, 488 U.S. 235, 240, 109 S.Ct. 573, 576, 102 L.Ed.2d 594 (1988). In Wilson, the Court sought to remedy the resulting “conflict, confusion, and uncertainty concerning the appropriate statute of limitations.” Wilson, 471 U.S. at 266, 105 S.Ct. at 1941. For purposes of determining the most analogous state statute of limitation, the Court rejected an approach which would “depend upon the particular facts or the precise legal theory of each claim,” and under which “different statutes of limitations would be applied to the various § 1983 claims arising in the same State, and multiple periods of limitations would often apply to the same case.” Id. at 274, 105 S.Ct. at 1946. Accordingly, the Court held that “[section] 1983 claims are best characterized as personal injury actions.” Id. at 280, 105 S.Ct. at 1949. Due to the array of state statutes of limitation governing particular personal-injury actions, however, the Court was forced to revisit the problem in Owens. The Court refined the approach adopted in Wilson by holding that “where a State has one or more statutes of limitations for certain enumerated intentional torts, and a residual statute for all other personal injury actions,” the residual or general personal injury statute applies. Owens, 488 U.S. at 236, 109 S.Ct. at 574. I think that choosing the most analogous state statute of limitation for an ERISA cause of action seeking benefits by focusing on the particular benefit at issue can only produce, as this case shows, the same sort of" }, { "docid": "16753116", "title": "", "text": "Ashafa’s claims separately. A. Expansion of Statutory Period Section 1983 does not contain an express statute of limitations. In order to determine the proper statute of limitations for § 1983 actions, a federal court must adopt the forum state’s statute of limitations for personal injury claims. Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). This circuit has consistently held that the appropriate statute of limitations for § 1983 cases filed in Illinois is two years as set forth in 735 ILCS § 5/13-202 (“sec.202”). See, e.g., Lucien v. Jockisch, 133 F.3d 464, 466 (7th Cir.1998); Booker v. Ward, 94 F.3d 1052, 1056 (7th Cir.1996); Palmer v. Board of Education, 46 F.3d 682, 684 (7th Cir.1995); Farrell v. McDonough, 966 F.2d 279, 282 (7th Cir.1992); Kalimara v. Illinois Dep’t of Corrections, 879 F.2d 276, 277 (7th Cir.1989), Ashafa contends that, under Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), these holdings are erroneous and asks us to overrule them. He asserts that this court should instead adopt the five-year statute of limitations set forth in 735 ILCS § 5/13-205 (“sec.205”). In Owens, the Supreme Court held that when a state has multiple statutes of limitations for personal injury actions, federal courts should apply the residual or general statute of limitations for personal injury actions for § 1988 purposes. Owens, 488 U.S. at 250, 109 S.Ct. 573. The Court noted that this holding was “fully consistent” with Wilson’s rejection of state “catchall” limitations provisions as appropriate in § 1983 actions. Id. at 250 n. 12, 109 S.Ct. 573. Under Owens, “[cjourts should resort to residual statutes of limitations only where state law provides multiple statutes of limitations for personal injury actions and the residual one embraces, either explicitly or by judicial construction, unspecified personal injury actions.” Id. Ashafa asserts that § 205, not § 202, is the Illinois general or residual statute for personal injury suits. We rejected this argument in Kalimara, stating that the issue was “well settled” and declining to reopen it. Kalimara, 879 F.2d at 277. Ashafa cites" }, { "docid": "23208411", "title": "", "text": "to look to analogous state statutes. Considerable confusion was generated which the Supreme Court sought to resolve in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Since statutes of limitations differ from state to state, it was not possible for the Supreme Court to achieve country-wide uniformity. The Court did attempt to achieve as much uniformity as possible, however, by decreeing that only one statute in each state shall apply and that, in looking for the one applicable state statute, section 1983 claims should be “characterized as personal injury actions.” 471 U.S. at 280, 105 S.Ct. at 1949. Unfortunately, Wilson did not completely solve the problem since many states had more than one statute of limitations governing personal injury actions. As a result, the Supreme Court was forced to revisit this issue in Owens v. Okure, - U.S. -, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). In Owens, the defendants argued that a section 1983 action against two police officers should be governed by New York’s one-year statute of limitations which cover ed eight intentional torts. The Court rejected the defendants’ arguments and concluded that New York’s three-year residual statute of limitations for claims of personal injury was the appropriate analogy. The Court reasoned that many states have a multiplicity of intentional tort statutes of limitations, but that “every State has one general or residual statute of limitations governing personal injury actions.” 109 S.Ct. at 580. The Court concluded by stating: We accordingly hold that where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1988 claims should borrow the general or residual statute for personal injury actions. 109 S.Ct. at 582. Although the rule is easy to state, it is somewhat more elusive to apply, as is demonstrated in this case. Kentucky law provides a five-year statute of limitations for “an action for an injury to the rights of the plaintiff not arising on contract and not otherwise enumerated.” Ky.Rev.Stat.Ann. § 413.120(6) (Baldwin 1988). Plaintiff argues that the five-year statute should apply since she sustained no “injury to the" }, { "docid": "203098", "title": "", "text": "U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). “[Wjhere state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions.” Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). The District has two statutes of limitations applicable to tort claims: a one-year statute governing enumerated intentional torts, D.C.Code § 12-301(4), and a three-year residual statute covering all other tort actions. Id. § 12-301(8). We apply the three-year residual statute of limitations to a section 1983 claim. Singletary v. District of Columbia, 351 F.3d 519, 529 n. 11 (D.C.Cir.2003). A federal court considering a section 1983 claim also applies the tolling rules of the jurisdiction from which it draws the limitations period so long as those rules are not “inconsistent with the policies underlying § 1983.” Bd. of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 487, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980) (quotation marks omitted). This rule applies to both statutory and common law tolling rules. See id. at 486-87, 100 S.Ct. 1790 (borrowing statutory tolling rules); Wallace, 549 U.S. at 394-95, 127 S.Ct. 1091 (borrowing common law rules). Unlike the statute of limitations, “the accrual date of a § 1983 action is a question of federal law that is not resolved by reference to state law.” Wallace, 549 U.S. at 388, 127 S.Ct. 1091 (emphasis in original). A section 1983 claim accrues “when the plaintiff has ‘a complete and ' present cause of action,’ that is, ‘when the plaintiff can file suit and obtain relief.’ ” Id. (quoting Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997)); see, e.g., Muñoz v. Bd. of Trs. of Univ. of Dist. of Columbia, 427 Fed.Appx. 1, 4 (D.C.Cir.2011) (per curiam) (section 1983 claim accrues when wrongful conduct occurs). C. We turn first to Earle’s accrual argument. Applying the ordinary rule of claim accrual, the district court concluded that," }, { "docid": "9443523", "title": "", "text": "actions. Carney’s state law claims, the University argues, are barred by the DCHRA’s one-year statute of limitations. Although the University filed no cross-appeal on this issue, we can affirm a district court judgment on any basis supported by the record. See Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 740-41 (D.C.Cir.1995). The “most appropriate or analogous” state law determines the applicable statute of limitations for section 1981 claims. Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987). The University argues that the District’s one-year statute of limitations for certain enumerated intentional torts, D.C.Code Ann. § 12-301(4), not its three-year residual statute of limitations for other personal injury claims, id. § 12-301(8), represents the most “analogous” statute of limitations for purposes of section 1981 actions. The district court rejected this argument, .as do we. For statute of limitations purposes, the Supreme Court treats section 1981 claims like claims under 42 U.S.C. § 1983. See Goodman, 482 U.S. at 660-62, 107 S.Ct. 2617 (applying the rule that courts should look to state personal injury statutes to determine the appropriate statute of limitations for section 1983 claims, adopted in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), to section 1981 claims); see also Banks v. Chesapeake and Potomac Telephone Co., 802 F.2d 1416, 1421-22 (D.C.Cir.1986) (same). The Supreme Court has held that in states with multiple statutes of limitations, claims under section 1983 are governed by the residual or general personal injury statute of limitations (like section 12-301(8)), rather than the statute of limitations for enumerated intentional torts (like section 12-301(4)). See Owens v. Okure, 488 U.S. 235, 243-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). Accordingly, section 12-301(8)’s three-year statute of limitations applies to all section 1981 claims. Because Carney filed suit approximately one year after her discharge, her section 1981 retaliation claim is not barred. Exactly when her claim accrued — and thus whether her DCHRA claim might be barred by the DCHRA’s one-year statute of limitations — amounts to a disputed issue of material fact that the district" }, { "docid": "1398639", "title": "", "text": "service should be completed within twenty days of this Order. The Court will not dismiss these two defendants from the lawsuit. B. Statute of Limitations ■ All defendants move for an order dismissing plaintiffs third and fifth causes of action as.barred by the statute of limitations. 1. Fifth Cause of Action Plaintiffs fifth claim alleges a violation of 42 U.S.C. § 1982. Defendants argue that this claim must be dismissed on the grounds that the statute of limitations has run. The parties dispute the appropriate limitations period for a section 1982 claim brought in California and assert that no California court or federal court viewing California law has visited this issue. Section 1982 is one of three primary statutes passed in the Civil Rights Act of 1866. See 42 U.S.C. §§ 1981-83. Because section 1982 does not have a statute of limitations, courts apply the applicable state statute of limitations. As the U.S. Supreme Court noted, “[b]eeause § 1981, like §§ 1982 and 1983, does not contain a statute of limitations, federal courts should select the most appropriate or analogous state statute of limitations.” Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 2620, 96 L.Ed.2d 572 (1987) (involving section 1981 claim). The U.S. Supreme Court in Wilson v. Garcia, 471 U.S. 261, 277-79, 105 S.Ct. 1938, 1948-49, 85 L.Ed.2d 254 (1985), concluded that section 1983 claims are best characterized as personal injury actions for purposes of selecting the most appropriate state statute of limitations and thus should be governed by the analogous state statute of limitations for personal injury actions. Similarly, the Court in Goodman found that the rationale in Wilson was equally applicable to causes of action brought under section 1981. Goodman, 482 U.S. at 661, 107 S.Ct. at 2621. Hence, section 1981 claims are also controlled by state statutes of limitations for personal injury actions. Id. The California statute of limitations for personal injuries is set out in Civil Procedure Code section 340(3). Section 340(3) requires that an action for personal injury be filed within one year of the alleged injury. In this case," }, { "docid": "20087434", "title": "", "text": "of her complaint by letter of May 23, 1986, and the complaint was withdrawn effective June 2, 1986. Plaintiff filed her complaint in this court on November 25, 1986. ANALYSIS As grounds for the motion to dismiss, defendants contend that plaintiff’s claims under 42 U.S.C. §§ 1981 and 1985(3) are barred by the statute of limitations and the doctrine of collateral estoppel and that plaintiff has failed to state a claim for either corporate or private conspiracy under § 1985(3). Defendants also maintain that plaintiff’s claim under § 1-2525 of the D.C.Code is barred by the election of remedies and the statute of limitations. Finally, defendants argue that the District of Columbia has not recognized any exceptions to the doctrine of employment-at-will and therefore plaintiff’s claim for wrongful discharge must be dismissed. 1. Claim under 42 U.S.C. § 1981 A. Statute of Limitations Defendants argue that plaintiff’s claim under 42 U.S.C. § 1981 should be governed by the District of Columbia’s one year statute of limitations, D.C.Code § 12-301(4), rather than the three year period relied upon by plaintiff, D.C.Code § 12-301(8). In support of this position, defendants claim that the injuries plaintiff has alleged are more closely analogous to the intentional torts enumerated under § 12-301(4) than to the more “general” personal injuries governed by § 12-301(8). In 1973, the D.C. Circuit held that actions under § 1981 are governed by the § 12-301(8) three year limitations period. Macklin v. Spector Freight Systems, Inc., 478 F.2d 979 (D.C.Cir.1973). Since that time, the circuit has had occasion to reconsider its Macklin holding in light of the Supreme Court’s decision in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), which held that for reasons of “uniformity, certainty and the minimization of unnecessary litigation,” all claims under 42 U.S.C. § 1983 should be governed by the state statute of limitations applied to tort actions for personal injuries. 471 U.S. at 275-76, 105 S.Ct. at 1947. In Banks v. Chesapeake & Potomac Tele phone Co., 802 F.2d 1416 (D.C.Cir.1986), this circuit held that the reasoning of Garcia applied" }, { "docid": "13639174", "title": "", "text": "United States ... shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.\" 29 U.S.C. § 794 (1988). . Unlike some states, Texas has only one statute of limitations for personal injury actions. Consequently, we need not address the issues discussed in Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 582, 102 L.Ed.2d 594 (1989) (“[Wjhere state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions.”). . See, e.g., Bush v. Commonwealth Edison Co., 732 F.Supp. 895, 900 (N.D.Ill.1990); DiMedio v. Girard Bank, 1987 WL 9410 (E.D.Pa.1987), aff'd, 835 F.2d 282 (3rd Cir.1987). Several courts have applied three-year personal injury statutes of limitations to Rehabilitation Act claims. See, e.g., Morse v. Univ. of Vermont, 973 F.2d 122 (2nd Cir.1992), aff’g 776 F.Supp. 844, 850 (D.Vt.1991); Doe v. Southeastern Univ., 732 F.Supp. 7, 9 (D.D.C.1990), appeal dismissed, 927 F.2d 1257 (D.C.Cir.1991); Wallace v. Town of Stratford Bd. of Educ., 674 F.Supp. 67, 71 (D.Conn.1986). .The Supreme Court has held that ‘‘[t]he federal interests in uniformity, certainty, and the minimization of unnecessary litigation” require the selection of a single statute of limitations from each state, to govern all actions under 42 U.S.C. § 1983. Wilson, 471 U.S. at 275, 105 S.Ct. at 1947. The Supreme Court has extended this holding to actions under 42 U.S.C. § 1981. Goodman, 482 U.S. at 661, 107 S.Ct. at 2617, aff’g 777 F.2d 113 (3rd Cir.1985). Because the federal interests noted in Wilson are no less pressing in the context of the Rehabilitation Act than in the contexts of section 1981 and section 1983, the Texas personal injury statute of limitations, section 16.003, should be applied uniformly to all claims under 29 U.S.C. § 794. Cf. Morse at 4 (\"The selection of one particular state statute" }, { "docid": "203097", "title": "", "text": "and that, under federal law, his claim accrued only upon the District’s satisfaction of its disclosure obligations. Before addressing his arguments, we briefly lay out the general framework governing claim accrual and the limitations period applicable in a section 1983 action. Section 1983 sets no limitations period. Consistent with “settled practice,” Wilson v. Garcia, 471 U.S. 261, 266, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), abrogated on other grounds as recognized by Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004), 42 U.S.C. § 1988(a) adopts the applicable state statute of limitations for a section 1983 action so long as such adoption “is not ‘inconsistent with the Constitution and laws of the United States.’ ” Burnett v. Grattan, 468 U.S. 42, 48, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984) (quoting 42 U.S.C. § 1988(a)). The United States Supreme Court has determined that the appropriate statute of limitations for a claim brought under section 1983 “is that which the State provides for personal-injury torts.” Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). “[Wjhere state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions.” Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). The District has two statutes of limitations applicable to tort claims: a one-year statute governing enumerated intentional torts, D.C.Code § 12-301(4), and a three-year residual statute covering all other tort actions. Id. § 12-301(8). We apply the three-year residual statute of limitations to a section 1983 claim. Singletary v. District of Columbia, 351 F.3d 519, 529 n. 11 (D.C.Cir.2003). A federal court considering a section 1983 claim also applies the tolling rules of the jurisdiction from which it draws the limitations period so long as those rules are not “inconsistent with the policies underlying § 1983.” Bd. of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 487, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980) (quotation marks omitted). This rule" }, { "docid": "20087435", "title": "", "text": "relied upon by plaintiff, D.C.Code § 12-301(8). In support of this position, defendants claim that the injuries plaintiff has alleged are more closely analogous to the intentional torts enumerated under § 12-301(4) than to the more “general” personal injuries governed by § 12-301(8). In 1973, the D.C. Circuit held that actions under § 1981 are governed by the § 12-301(8) three year limitations period. Macklin v. Spector Freight Systems, Inc., 478 F.2d 979 (D.C.Cir.1973). Since that time, the circuit has had occasion to reconsider its Macklin holding in light of the Supreme Court’s decision in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), which held that for reasons of “uniformity, certainty and the minimization of unnecessary litigation,” all claims under 42 U.S.C. § 1983 should be governed by the state statute of limitations applied to tort actions for personal injuries. 471 U.S. at 275-76, 105 S.Ct. at 1947. In Banks v. Chesapeake & Potomac Tele phone Co., 802 F.2d 1416 (D.C.Cir.1986), this circuit held that the reasoning of Garcia applied with equal force to claims under § 1981 and that § 1981 claims brought in the District of Columbia should be governed by the personal injury statute of limitations, rather than the one year limitations period applicable to actions brought under the DCHRA. The court also observed that, although the question was not directly before them, actions under § 1981 should be controlled by the District’s three year statute of limitations, rather than the § 12-301(4) period of one year. This court finds the reasoning of the Banks dicta persuasive and therefore holds that plaintiff’s claims under § 1981 are governed by § 12-301(8). B. Collateral Estoppel Defendants also contend that plaintiff’s claims under § 1981 are barred by the doctrine of collateral estoppel, in that the facts at issue have already been adjudicated by OHR. Defendants find support for this position in University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), which found that federal courts addressing claims under the Reconstruction civil rights statutes must give a state" }, { "docid": "4044749", "title": "", "text": "L.Ed.2d 613 (1990), Alternatively, Farrell asks us to find that his amended complaint against McDonough is timely either because the limitations period was tolled under Ill.Rev. Stat. ch. 110, 1113-211, or because his amended claim relates back to the date his original complaint was filed. See Fed. R.Civ.P. 15(c). We address Farrell’s arguments in turn, but find none persuasive. A. Section 1983 does not contain a federal statute of limitations. Consequently, prior to Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), the Supreme Court instructed lower courts to apply the state statute of limitations “most analogous” to the particular section 1983 action being litigated. Board of Regents v. Tomanio, 446 U.S. 478, 488, 100 S.Ct. 1790, 1797, 64 L.Ed.2d 440 (1980). In Wilson, however, the Court abandoned this case-by-ease approach and directed lower courts to conduct the section 1983 statute of limitations inquiry at a higher level of abstraction. Wilson teaches that all section 1983 actions are best characterized as personal injury actions and that courts should therefore apply a state’s personal injury statute of limitations to all section 1983 actions arising in that state. Id. at 280. Revisiting this topic in Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), the Supreme Court further held that courts should choose a general personal injury statute over one applicable only to specified intentional torts in states that provide both choices. Id. 109 S.Ct. at 581-82. Additionally, both Wilson and Owens stressed that courts should not resort to a residual or “catch-all” statute in the first instance, but only where state law does not provide a general personal injury statute. Wilson, 471 U.S. at 278, 105 S.Ct. at 1948; Owens, 109 S.Ct. at 582 n. 12. In Kalimara, we relied on Wilson and Owens to hold explicitly in Gray that Wisconsin’s six-year statute of limitations for injuries to personal rights applies to section 1988 actions arising there. We have since reaffirmed both Kalimara, see Pearson v. Gatto, 933 F.2d 521, 525 n. 3 (7th Cir.1991), and Gray, see Kuemmerlein v. Board of Education," }, { "docid": "11069780", "title": "", "text": "of the Institute’s request for a use variance. The defendants removed the case to federal district court and immediately filed a motion to dismiss all claims, asserting various grounds, including expiration of the two-year statute of limitations on the § 1983 claims. See Hondo, Inc. v. Sterling, 21 F.3d 775, 777 (7th Cir.1994) (appropriate vehicle to challenge complaint for failure to comply with applicable statute of limitations is a motion under fed. R. Civ. P. 12(b)(6)); but see Perry v. Sullivan, 207 F.3d 379, 382 (7th Cir.2000) (defendant need not raise statute of limitations in motion under Rule 12(b)(6) if it was raised in the defendant’s answer to the complaint). The district court held that the § 1983 claims were untimely and dismissed the case with prejudice. II. Discussion Section 1983 claims are subject to the statute of limitations for personal injury actions in the state in which the alleged injury occurred. Wilson v. Garcia, 471 U.S. 261, 276-80, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir.1992). The Supreme Court has further held that in cases where state law provides for multiple statutes of limitations for different types of personal injury, the general or residual statute is the one applicable to § 1983 claims. Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). Indiana’s personal injury statute of limitations is two years, see ind. Code Ann. § 34-11-2-4 (West 2004), and Coopwood v. Lake County Community Development Department, 932 F.2d 677 (7th Cir.1991), so the statute of limitations on the Institute’s § 1983 action is also two years. While state law determines the length of the limitations period, federal law determines the date of accrual of the cause of action. Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir.1993). A claim accrues for § 1983 purposes “‘when the plaintiff knows or should know that his or her constitutional rights have been violated.’ ” Id. (quoting Wilson, 956 F.2d at 740). This inquiry proceeds in two steps. First, the court must identify the injury. Next, it" }, { "docid": "9443522", "title": "", "text": "Co., 708 F.2d 852, 854-55 (1st Cir.1983) (evidence of settlement negotiations admissible to show interference with efforts to mitigate damages); Resolution Trust Corp. v. Blasdell, 154 F.R.D. 675, 681 (D.Ariz.1993) (evidence of settlement negotiations admissible to prove retaliatory’ motive); see also 23 ChaRles Alan Wright & Kenneth W. Graham, Jr., Federal PRACTICE and Procedure § 5314, at 282 (1980) (“Rule 408 is [ ] inapplicable when the claim is based upon some wrong that was committed in the course of settlement discussions; e.g., libel, assault, breach of contract, unfair labor practice, and the like.”)- Carney offered the settlement correspondence not to prove that the University discriminated against her, but to show that the University committed an entirely separate wrong by conditioning her benefits on a waiver of her rights. The letters were therefore admissible. At the end of its brief, the University urges affirmance on an alternate theory: that Carney’s retaliation claims are barred by applicable statutes of limitations. The University maintains that a one-year rather than a three-year statute of limitations governs section 1981 actions. Carney’s state law claims, the University argues, are barred by the DCHRA’s one-year statute of limitations. Although the University filed no cross-appeal on this issue, we can affirm a district court judgment on any basis supported by the record. See Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 740-41 (D.C.Cir.1995). The “most appropriate or analogous” state law determines the applicable statute of limitations for section 1981 claims. Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987). The University argues that the District’s one-year statute of limitations for certain enumerated intentional torts, D.C.Code Ann. § 12-301(4), not its three-year residual statute of limitations for other personal injury claims, id. § 12-301(8), represents the most “analogous” statute of limitations for purposes of section 1981 actions. The district court rejected this argument, .as do we. For statute of limitations purposes, the Supreme Court treats section 1981 claims like claims under 42 U.S.C. § 1983. See Goodman, 482 U.S. at 660-62, 107 S.Ct. 2617 (applying the rule that courts should look" } ]

[ { "docid": "22561146", "title": "", "text": "F.2d 39, 41 (5th Cir.1992) (per curiam). Ill A Cervantes argues that her trial counsel rendered ineffective assistance by inducing her to plead guilty with misrepresentations regarding the sentence she would receive. Specifically, Cervantes contends that her counsel stated that she would receive a sentence of no more than 37 months in prison. She further alleges that counsel advised her that the plea hearing would be confusing, that she should agree to everything the judge said, and that he would handle the situation. The government responds that the statements made by Cervantes at the guilty plea and sentencing hearings, while under oath, refute her allegations. While Cervantes concedes her statements at these hearings, she argues that the record is bare with respect to the conversations she had with her attorney and, therefore, that the district court should have held an evidentiary hearing to resolve the issue. We, therefore, address whether the record before us requires a hearing on her claim of ineffective counsel. B (1) To be constitutionally valid, a guilty plea must be knowing and voluntary. Harmason v. Smith, 888 F.2d 1527, 1529 (5th Cir.1989). Thus, a guilty plea may be invalid if induced by defense counsel’s unkept promises. See id. On the other hand, a defendant ordinarily will not be heard to refute her testimony given at a plea hearing while under oath. United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir.1985). “Solemn declarations in open court carry a strong presumption of verity,” forming a “formidable barrier in any subsequent collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1628-29, 52 L.Ed.2d 136 (1977). Nevertheless, a defendant may seek habeas relief on the basis of alleged promises, though inconsistent with representations she made in open court when entering her guilty plea, by proving (1) the exact terms of the alleged promise, (2) exactly when, where, and by whom the promise was made, and (3) the precise identity of an eyewitness to the promise. See Harmason, 888 F.2d at 1529 (citations omitted). If the defendant produces independent indicia of the likely merit of her allegations," } ]

[ { "docid": "25262", "title": "", "text": "do, for the plea colloquy process exists in part to prevent petitioners such as Ramos from making the precise claim that is today before us. Where the court has scrupulously followed the required procedure, the defendant is bound by his statements in response to that court’s inquiry. 170 F.3d at 566 (internal quotation marks omitted). The present case presents a closer question than Ramos. However, as in Ramos, we hold that a term that is unambiguous on its face and agreed to by the defendant in open court will be enforced. See Hall v. Maggio, 697 F.2d 641, 643 (5th Cir.1983) (per curiam) (holding that defendant’s misunderstanding about life sentence, based on “common knowledge” and attorney’s misadvice, did not invalidate plea). We note that the term “life sentence” is not ambiguous. The United States Constitution does not require judges to explain the meaning of “life sentence” and other unambiguous terms during the plea colloquy in order to combat alleged misinformation that is not revealed on the record. Cf. Boykin, 395 U.S. at 243-44, 89 S.Ct. 1709 (requiring explicit waiver of certain constitutional rights on the record when court takes guilty plea); United States v. Hanley, 906 F.2d 1116, 1121 (6th Cir.1990) (holding that defendant was not entitled to relief on his claim of ineffective assistance of counsel where his counsel incorrectly advised him that he would be eligible for parole in a third of the time he received for a sentence because the court informed the defendant of the potential range of incarceration for his crime and advised him that he would be sentenced under the guidelines); see also Fed.R.Crim.P. 11(b) (setting forth the elements the federal court must address when considering and accepting guilty pleas). McAdoo acknowledged in court under oath that he was agreeing to a life sentence, and the evidence and his un-sworn statement presented to the state court failed to show that he reasonably believed he was actually agreeing to a maximum sentence of only twenty years. Therefore, the state court did not err in finding that McAdoo understood the consequences of his plea. The state" }, { "docid": "16820115", "title": "", "text": "applying the AEDPA (28 U.S.C. § 2254(d)) to Daniel’s Brady claim and Teague to his ineffective assistance of counsel claim, we are not able to deny all relief, then we would ordinarily be required to dismiss Daniel’s entire petition for failure to comply with the exhaustion requirement. II. Voluntariness of Daniel’s Plea Daniel argues that his guilty plea was involuntary because it was induced by Le-itner’s unfulfilled promise that Judge Hat-ten would be the sentencing judge. In his affidavit, Daniel states: “Had I known when I waived my rights and entered a plea to Judge Hatten he was not going to assess punishment and that Judge Bacon was going to get involved in my case at sentencing, I would have pled guilty to a jury.” Daniel does not claim the existence of a plea agreement concerning the identity of the sentencing judge. Nor does he claim that he had the right to be sentenced by the judge of his choice or argue any other ground for involuntariness. The record reflects that in all other respects Daniel completely understood the consequences of his guilty plea. Because a guilty plea involves the waiver of constitutional rights it must be voluntary, knowing and intelligent. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 1468-69, 25 L.Ed.2d 747 (1970). In Brady the Supreme Court stated: “The standard as to the voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit: ‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g.bribes).’ ” Id. at 1472 (inside quotation marks omitted). See also United States v. Amaya, 111 F.3d 386, 389 (5th Cir.1997) (quoting a portion of the above Brady passage); McKenzie v. Wainwright, 632 F.2d" }, { "docid": "1971630", "title": "", "text": "of incorrectness beyond error is required ... the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (internal quotation marks and citations omitted). According to petitioner, the clearly established Supreme Court precedent applicable to his case is provided by Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) and Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Petitioner specifically identifies Brady’s holding that “a plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, ... must stand unless induced by [inter alia] ... unfulfilled ... promises,” Brady, 397 U.S. at 755, 90 S.Ct. 1463 (internal quotation marks and alterations omitted), and Santobello’s holding that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, [due process requires that] such promise must be fulfilled” or the defendant must be given “the opportunity to withdraw his plea of guilty.” Santobello, 404 U.S. at 262-63, 92 S.Ct. 495. Petitioner argues that “the state court unreasonably applied clearly established Supreme Court precedent in deciding that [he] had no due process right to withdraw his plea when the trial court refused to honor [the] promised sentence” of five years probation and instead sentenced him to a term of imprisonment of five to fifteen years. More specifically, petitioner argues that the trial court’s enhanced sentence would be justified only if the plea agreement “unambiguously implied a no-arrest condition”' — -that is, only if the state courts’ interpretation of the agreement’s proof condition were the only reasonable interpretation. As noted, the trial court explained that the proof condition implicitly provided that “the court’s promise of probation was contingent upon defendant’s not getting indicted for committing another felony. No rational person could believe that a new" }, { "docid": "13990805", "title": "", "text": "court violated his due process rights when it failed to advise him of the possibility of an extended term sentence, with the consequence that his guilty plea was not knowing and voluntary. The court rejected all these claims, but it granted Dalton a certificate of appealability with respect to the third issue. On appeal, Dalton asks that we expand the certificate of appealability to include his ineffective assistance of counsel claim. II A Dalton argues that his due process rights were violated because his guilty plea in the state court was not knowing and voluntary. This is so, he contends, because he “was not aware of the maximum punishment he could receive,” specifically the possibility of an extended term sentence under Illinois law. Our review of Dalton’s petition is governed by the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, which permits a federal court to issue a writ of habeas, corpus only if the state court reached a decision on the merits of a claim, and that decision was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Supreme Court held that a defendant’s guilty plea “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences,” id. at 748, 90 S.Ct. 1463. The Court defined voluntariness as follows: “[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper -” Id. at 755, 90 S.Ct. 1463 (internal quotation marks omitted). Although the Supreme Court has not defined the “direct consequences” of a guilty plea, it must have intended this term" }, { "docid": "22853688", "title": "", "text": "fined up to $2,000,000); United States v. Powell, 354 F.3d 362, 368-70 (5th Cir.2003) (failure to inform defendant of mandatory restitution during plea colloquy harmless where defendant aware of maximum potential fine, which exceeded restitution amount, as she received adequate notice of her financial liability); United States v. Morris, 286 F.3d 1291, 1294 (11th Cir.2002) (collecting cases holding that although Rule 11(c) “requires the district court to explain a defendant’s liability for both fines and restitution, ... failure to do so does not impact a defendant’s substantial rights where he was warned of a potential fine larger than the actual amount of restitution ordered”). We therefore conclude without difficulty that there is no reasonable probability that being told at the plea hearing of mandatory restitution of $6500 would have affected appellant’s decision to plead guilty. b) The Breach of the Plea Agreement Appellant argues that the government breached the plea agreement by its argumentative relating of the facts of appellant’s crime and the seriousness of his criminal history. We agree. “We review interpretations of plea agreements de novo and in accordance with principles of contract law.” United States v. Riera, 298 F.3d 128, 133 (2d Cir.2002). Further, we construe plea agreements strictly against the government and do not “hesitate to scrutinize the government’s conduct to ensure that it comports with the highest standard of fairness.” United States v. Lawlor, 168 F.3d 633, 637 (2d Cir.1999). “To determine whether a plea agreement has been breached, a court must look to what the parties reasonably understood to be the terms of the agreement.” Id. at 636 (internal quotation marks and citation omitted). Moreover, because plea bargains re quire defendants to waive fundamental constitutional rights, prosecutors are held to meticulous standards of performance. Id. To be sure, the government acknowledged at sentencing that the plea agreement prohibited it from seeking an upward departure or taking a position on the appropriate sentence within the applicable Guidelines range. It also stated that it did not intend to violate those provisions of the agreement. Such statements do not, however, insulate the government against a finding of" }, { "docid": "18217411", "title": "", "text": "POLITZ, Circuit Judge: Upon entry of a guilty plea to second degree murder of his wife, John David Hobbs was given a mandatory life sentence, without benefit of parole, probation or suspension of sentence for 20 years. In due course Hobbs sought federal habeas relief under 28 U.S.C. § 2254 contending that: (1) his guilty plea was not knowing, free and voluntary, (2) no factual predicate for the offense was established, and (3) he was denied effective assistance of counsel who allegedly failed to consider the competency issue, adequately prepare for trial, submit a pre-sentence report and properly advise petitioner of his legal rights and vulnerabilities. The district court denied Hobbs’ petition and an appeal was noted. We remanded for a determination whether the appeal was timely taken. After a hearing the district court so found and the matter returns to us for disposition. Finding no error in the procedure followed and neither error of law nor fact in the district court’s ruling on the merits, we affirm. I. Guilty plea Hobbs contends that his guilty plea was faultily entered because he was not informed of the elements of the crime of second degree murder, told of the possibilities of a responsive verdict of guilty of manslaughter if he were tried, or informed of the maximum penalty for a conviction of second degree murder. We have consistently held that a guilty plea “must not only be entered voluntarily, but also knowingly and intelligently: the defendant must be aware of the relevant circumstances and the likely consequences.” Diaz v. Martin, 718 F.2d 1372, 1376 (5th Cir.1983). On federal habeas review, a guilty plea which was voluntarily entered by a defendant who understood the nature of the charges and consequences of the plea will pass constitutional muster. The plea will be upheld even if the state trial judge fails to explain the elements of the offense, provided it is shown by the record, or the evidence adduced at an evidentiary hearing if one proves necessary, that the defendant understood the charge and its consequences. Diaz v. Martin; Brown v. Jernigan, 622 F.2d" }, { "docid": "13990806", "title": "", "text": "either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Supreme Court held that a defendant’s guilty plea “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences,” id. at 748, 90 S.Ct. 1463. The Court defined voluntariness as follows: “[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper -” Id. at 755, 90 S.Ct. 1463 (internal quotation marks omitted). Although the Supreme Court has not defined the “direct consequences” of a guilty plea, it must have intended this term to encompass the maximum sentence for which a defendant is eligible. Compare Fed.R.Crim.P. ll(b)(H)-(M); Ill. S.Ct. Rule 402(a)(2). -We can imagine no consequence of a defendant’s guilty plea more direct, immediate, and automatic than the maximum amount of time she may serve as a result of her plea. See Warren v. Richland County Circuit Court, 223 F.3d 454, 457 (7th Cir.2000). While a defendant need not know “all the consequences, such as loss of the right to vote or of the right to own a gun, or the effect on future sentences,” he must “certainly [know] the maximum punishment that he faces if he is convicted in the case at hand.” Trueblood v. Davis, 301 F.3d 784, 786 (7th Cir.2002) (citing United States v. Lumpkins, 845 F.2d 1444, 1449 (7th Cir.1988)). Indeed, as a matter of state law (which of course is not our concern), Illinois requires this for extended term sentences. See 730 ILCS 5/5-8-2(b) (providing, for purposes of extended term sentences, that “[i]f the conviction was by plea, it shall appear on the" }, { "docid": "23396869", "title": "", "text": "despite Rule 11 error, because the defendant “d[id] not direct this court to any portion of the record supporting the proposition that the maximum sentence for count three affected his plea decision”), and the PSR, which he acknowledged reviewing, corrected any misapprehensions he may have had about his sentencing exposure, United States v. Vasquez-Bernal, 197 F.3d 169, 171 (5th Cir.1999) (affirming guilty plea conviction, despite Rule 11 error, in part because “the presentence report specifically detailed the punishment range applicable to [the defendant’s crime”). It is true, as Alvarado-Casas points out, that “the 190-month prison sentence actually imposed is 70 months greater than the 10-year maximum possible prison sentence of which his counsel and the district court advised him,” and that one consideration in our inquiry is the extent to which a defendant’s perceived sentencing .exposure diverges from his true sentencing exposure, United States v. Guerra, 94 F.3d 989, 995 (5th Cir.1996). But it oversimplifies the matter to focus on this discrepancy alone, and ignore other factors that loomed large in the decisional calculus. In exchange for his guilty plea, Alvarado-Casas received three acceptance-of-responsibility points, which lowered his Guidelines range from 262-327 months to 188-235 months,’ a decrease of six to seven years at both ends.’ Moreover, as part of the plea agreement, the government agreed to dismiss twelve substantive counts of aggravated alien transporting, each of which carried a sentencing exposure of twenty years of imprisonment. Thus, even if Alvarado-Casas were prepared to go to trial, it is not reasonably probable that he would have declined the plea deal and exposed himself to a higher potential Guidelines range and maximum sentence. See Caraballo-Rodriguez, 480 F.3d at 76 (holding that even if the district court erred in accepting defendant’s guilty plea without a factual basis, there was no reasonable probability that but for the alleged error the defendant would not have pleaded guilty, in light of the “extremely favorable plea deal” that was “structured to find a significantly less serious offense to which he could plead”). Our conclusion is buttressed by Alvarado-Casas’s decision not to move under Rule 11(d)(2) to" }, { "docid": "12828730", "title": "", "text": "S.Ct. 1463. The Brady Court also defined the standard for determining whether a defendant’s plea qualifies as voluntary: [A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g.bribes). Id. at 755 (citation and internal quotation marks omitted). By 1992, this standard was deeply entrenched in federal law. See, e.g., Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984); United States v. Bouthot, 878 F.2d 1506, 1511 (1st Cir.1989); Correale v. United States, 479 F.2d 944, 947 (1st Cir.1973). Consequently, the rule is not a new rule, as Teague defines that term, with respect to the petitioner’s case. In this instance (as we shall explain below), we conclude that the petitioner’s plea does not qualify as voluntary under that standard. Since this is true whether or not the petitioner had a constitutional right to receive the exculpatory evidence under the rule announced in Brady v. Maryland, we need not address the much closer question of whether a court, in 1992, would have been compelled to rule that the petitioner had a Brady v. Maryland right to receive the information before pleading guilty. B. The Merits. A defendant who was warned of the usual consequences of pleading guilty and the range of potential punishment for the offense before entering a guilty plea must make two showings in order to set that plea aside as involuntary. First, he must show that some egregiously impermissible conduct (say, threats, blatant misrepresentations, or untoward blandishments by government agents) antedated the entry of his plea. See Brady v. United States, 397 U.S. at 755, 90 S.Ct. 1463; see also Correale, 479 F.2d at 947 & n. 3 (discussing types of prosecutorial misconduct that might render a plea involuntary). Second, he must show that" }, { "docid": "21604340", "title": "", "text": "fully informed of the maximum sentence on each count); Hollis v. United States, 687 F.2d 257, 260 (8th Cir.1982) (rejecting a defendant’s claim that his plea was involuntary, as “[t]he rule is clear that a defendant cannot set aside a guilty plea merely because he relied on his attorney’s opinion that the sentence would be a lenient one”); see also United States v. Silva, 430 F.3d 1096, 1100 (10th Cir.2005) (rejecting a defendant’s contention that his guilty plea was involuntary and unknowing due to his attorney’s erroneous advice about the likely sentencing range under the guidelines, because the defendant “expressly indicated he was fully aware that the prosecution had declined to agree that a specific sentence was the appropriate disposition in his case, and that he faced a maximum term of twenty years imprisonment at sentencing”). That the sentencing guidelines are now merely advisory, and thus less likely to determine the ultimate sentence than when they were mandatory, only strengthens the force of these precedents. If a guilty plea is knowing and voluntary notwithstanding counsel’s erroneous advice about the sentencing guidelines, we see no reason why a waiver of rights in a plea agreement would not also be knowing and voluntary despite such mistaken guidance. The plea agreement signed by Quiroga specified the statutory penalties for the offense to which he agreed to plead guilty: a term of imprisonment of at least ten years and up to life without the possibility of parole, a fine of $8 million, or both; a special assessment of $100; and a period of supervised release of at least eight years and up to life. (App.l). The agreement further provided that while “the parties may have discussed how various factors could impact the court’s sentencing decision and the determination of the advisory sentencing guidelines range,” the parties agreed that “discussions did not result in any express or implied promise or guarantee concerning the actual sentence to be imposed by the court.” (App.3). The agreement also said that the defendant “understands that he will have no right to withdraw his guilty plea if the sentence imposed" }, { "docid": "16820116", "title": "", "text": "Daniel completely understood the consequences of his guilty plea. Because a guilty plea involves the waiver of constitutional rights it must be voluntary, knowing and intelligent. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 1468-69, 25 L.Ed.2d 747 (1970). In Brady the Supreme Court stated: “The standard as to the voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit: ‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g.bribes).’ ” Id. at 1472 (inside quotation marks omitted). See also United States v. Amaya, 111 F.3d 386, 389 (5th Cir.1997) (quoting a portion of the above Brady passage); McKenzie v. Wainwright, 632 F.2d 649, 651 (5th Cir.1980) (citing and paraphrasing the above Brady passage; affirming denial of claim the plea was involuntary). Where a defendant can show that the court, the prosecutor or defense counsel induced his guilty plea by clearly and unequivocally guaranteeing a lesser sentence or some other specific leniency, the guilty plea is not voluntary unless the defendant receives that which he was promised. See Amaya, 111 F.3d at 388-89 (holding that the district court’s legally unfulfillable promise to impose sentence as though the government had moved for a downward departure rendered the defendant’s guilty plea involuntary); Davis v. Butler, 825 F.2d 892, 894-95 (5th Cir.1987) (remanding for evidentiary hearing to determine if defense counsel guaranteed that if the defendant pleaded guilty he would be pardoned in three years). The defendant must generally establish that an actual promise or guarantee was made by showing: (1) the exact terms of the alleged guarantee; (2) exactly when, where and by whom the guarantee was made; and (3) the identity of any eyewitnesses to the guarantee. DeVille v." }, { "docid": "23376001", "title": "", "text": "personally observe Crow in possession of methamphetamine. As discussed, supra, a number of CIs independently linked Crow with drug distribution involving Young and Allman. The officers vouched for the CIs’ reliability and, as stated, their statements were sufficiently corroborated, which provides further assurance of reliability. There is also circumstantial evidence linking Crow with Allman and Young’s distribution scheme. Crow did little to rebut the statements in the PSR regarding his involvement with Young and Allman. He presented an affidavit from Young that denied Crow’s involvement in the conspiracy; however, the veracity of this affidavit was called into question by statements of Allman to the probation officer regarding his involvement with Crow. Accordingly, we do not find clear error. III. For the foregoing reasons,, the judgments of the district court are AFFIRMED. . During the execution of the search, Allman escaped. . At the plea hearing, the court advised Young, inter alia, that his sentence under the guidelines could not be predicted, that \"the amount of controlled substance involved has a direct bearing.\" Young stated that he understood this. . This court stated in Rivera, 898 F.2d at 447, that “[a]s long as the [defendant] ‘understood the length of time he might possibly receive, he was fully aware of his plea’s consequences’”. . Of course, we also take note of the fact that Young stated in open court at his plea hearing (1) that his plea was voluntary; (2) that he was not forced, threatened, or coerced, in any way, into pleading guilty; (3) that, as discussed, he understood that his punishment range could not be accurately predicted because the amount of drugs involved was a matter in dispute; and (4) that he had not received any prediction, prophesy, or promise as to the terms of his sentence. \"The defendant's declaration in open court that his plea is not the product of threats or coercion carries a strong presumption of veracity.” United States v. Clark, 931 F.2d 292, 295 (5th Cir.1991) (quoting United States v. Darling, 766 F.2d 1095 (7th Cir.), cert. denied, 474 U.S. 1024, 106 S.Ct. 579, 88 L.Ed.2d" }, { "docid": "20655290", "title": "", "text": "386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because the analysis in counsel’s brief appears to be thorough, we limit our review to the subjects that counsel discusses as well as to the matters that Mr. Moody raises in his response opposing counsel’s motion. Mr. Moody asks that we set aside his guilty plea. He maintains that the lawyer representing him at his plea hearing coerced him into pleading guilty by telling him that he would spend the rest of his life in prison if he did not accept the deal offered by the Government. Noting that a plea is voluntary “when it is not induced by threats or misrepresentations and the defendant is made aware of the direct consequences of the plea,” and that there is a presumption that the defendant’s testimony in a plea colloquy is truthful, see United States v. Messino, 55 F.3d 1241, 1248 (7th Cir.1995) (internal quotation marks omitted), present counsel examines the plea colloquy required by Rule 11 of the Federal Rules of Criminal Procedure. Counsel notes that the district court complied with almost every requirement of Rule 11. The court explained the nature of the charge and some of the potential penalties that a conviction entailed, including the minimum prison term, the maximum term of supervised release as well as the maximum fíne and the special assessment. Having informed Mr. Moody of the possibility of a perjury prosecution if he did not tell the truth, the court found that the plea was knowing and voluntary and that there was a factual basis for the plea. The court also discussed the plea agreement with Mr. Moody. Counsel, nonetheless, acknowledges that there were several omissions from the court’s Rule 11 inquiry. The court neglected to inform Mr. Moody that, as an armed career criminal, he faced up to a life sentence under the statute. Rule 11(b)(1)(H) requires the disclosure of the maximum term permitted by statute. Counsel goes on to explain, however, that this omission could not constitute plain error because Mr. Moody received a sentence no higher than the statutory minimum and" }, { "docid": "16910732", "title": "", "text": "minimum sentence under Count IV and that the court was required to so advise him. The court, however, erroneously relying on Crockett, failed to do so. This failure violated Fed.R.Crim.P., Rule 11, 18 U.S.C.A., and undermined the voluntariness of McCann’s guilty plea: [T]o determine whether a plea is voluntary, a court must assess whether the defendant fully understood the consequences of the plea.... Both the attorneys and the court have a duty to apprise the defendant of the consequences of the plea and ensure that it is voluntary. If these duties are not discharged, the defendant is not ‘fully aware’ of the consequences of the plea and it is therefore involuntary. The court’s duties are delineated by Rule 11(c) of the Federal Rules of Criminal Procedure. With respect to advising the defendant as to his potential sentence in a guidelines case, the court’s obligation under Rule 11 is to advise the defendant of the mandatory minimum and maximum penalties for the crime committed and that the guidelines will govern sentencing. ... United States v. Williams, 919 F.2d 1451, 1456 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1604, 113 L.Ed.2d 667 (1991). Inasmuch as McCann was not fully aware of the consequences of his plea, we hold that he entered an involuntary guilty plea. McCann’s belief, and that of the government and the court, that the stipulation prevented the court from considering the mandatory minimum sentence on Count IV was erroneous. As such, it rendered his plea involuntary. Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970) (a plea of guilty must stand unless induced by misrepresentations including unfilled or unfulfillable promises); United States v. Hand, 913 F.2d 854, 856 (10th Cir.1990) (where the government obtains a guilty plea predicated in any significant degree on a promise or agreement with the prosecuting attorney, such promise must be fulfilled to maintain the integrity of the plea). We hold that McCann’s guilty plea was involuntary. It was based on the erroneous assumption that the stipulation precluded the court from considering the other chemicals and" }, { "docid": "17841704", "title": "", "text": "and that the plea was knowing and voluntary, not obtained by coercion or pressure. In all respects, therefore, the requirements of Rule 11 were satisfied, and the plea was validly accepted by the court. Cf. id. at 977 (finding a waiver of the right to appeal knowing and voluntary where the district court engaged in an “extended colloquy” with the defendant); United States v. Grant, 117 F.3d 788, 791 (5th Cir.1997) (rejecting the defendant’s contention that he should be allowed to withdraw his guilty plea because “the district court meticulously satisfied its obligations under Rule 11”). The plea agreement made no sentencing recommendation, but this is not unusual and is specifically authorized by Rule 11(e)(1)(A). See United States v. Fine, 975 F.2d 596, 600 (9th Cir.1992) (en banc) (noting that the plea was pursuant to Rule 11(e)(1)(A), and that the government accordingly promised only to dismiss some counts, not to recommend a specific sentence); United States v. Gilliam, 255 F.3d 428, 431 (7th Cir.2001) (plea agreement noted minimum and maximum sentences, but noted that the final determination regarding the sentence would be determined by the court). The subsequent acceptance or rejection of the plea agreement does not invalidate the validly accepted plea. See United States v. Hyde, 520 U.S. 670, 674, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997) (“Guilty pleas can be accepted while plea agreements are deferred, and the acceptance of the two can be separated in time.”); United States v. Ewing, 957 F.2d 115, 118 (4th Cir.1992) (noting that the flaw in the defendant’s position was “its failure to acknowledge the distinction between a plea of guilty and a plea agreement”). “ ‘[A] plea of guilty entered by one fully aware of the direct consequences ... must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by-promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g., bribes).’ ” United States v. Kaczynski, 239 F.3d 1108, 1114 (9th Cir.2001) (quoting Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25" }, { "docid": "9373837", "title": "", "text": "each of the offenses to him, that he was pleading guilty to all of the charges except two because he was in fact guilty, that he was entering an Alford plea with respect to two of the charges because it was in his best interest to plead guilty to these two charges, that he was waiving certain con stitutional rights, and that he understood the possible sentences he could receive. In the face of the overwhelming evidence that Beck’s plea was knowingly, voluntarily, and intelligently made, Beck relies on an affidavit he submitted on state habeas. In the affidavit, Beck states that his counsel “did not explain the elements of any crime to me.” Beck further states: My lawyers did not explain to me that capital murder was different than murder. I did not understand that. If I had understood there was a difference, I would not have pled guilty to the capital murder of Florence Marks, because I did not rape her, and I told my lawyers that I didn’t rape her. I would not have pled guilty to any of the capital murder charges if I had understood that taking property by itself was not robbery. Beck’s reliance on his affidavit is misplaced. “Absent clear and convincing evidence to the contrary,” Beck “is bound by the representations he made during the plea colloquy.” Burket, 208 F.3d at 191; see also Fields v. Attorney General of State of Maryland, 956 F.2d 1290, 1299 (4th Cir.1992). Beck has presented no evidence of sufficient evidentiary force to demonstrate that his representations were untruthful or involuntary. Cf. Brady, 397 U.S. at 755, 90 S.Ct. 1463 (holding that a guilty plea is made knowingly and intelligently if the defendant is fully aware of the “direct consequences” of his guilty plea and was not induced “by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no relationship to the prosecutor’s business (e.g., bribes)”) (citation and internal quotation marks omitted). Beck is, therefore, bound by his representations. Burket, 208" }, { "docid": "22308143", "title": "", "text": "itself was correct, even if it was based on an inappropriate ground. United States v. Click, 807 F.2d 847, 850 n. 5 (9th Cir.1987). Thus, we may affirm if the dismissal would have been proper under Rule 4(b). Mathews seeks to avoid his sentence on the ground that an allegation of the indictment — namely, that he transported the kidnapped victim from Oregon to Washington — is contradicted by the evidence. By pleading guilty to the indictment, however, Mathews conclusively admitted the allegation. By seeking to contradict the plea, Mathews is, in effect, challenging the validity of the plea. He cannot prevail, because his challenge is to the factual basis of the plea — not to its consensual character. See Mabry v. Johnson, 467 U.S. 504, 508-09, 104 S.Ct. 2543, 2546-47, 81 L.Ed.2d 437 (1984). “It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.” Id. at 508, 104 S.Ct. at 2547 (footnote with citations omitted) (emphasis added). The Supreme Court has specified the grounds on which a guilty plea may successfully be attacked: “ ‘[A] plea of guilty entered by one fully aware of the direct consequences ... must stand unless induced by threats (or promises to diseontin-ue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes).’ ” Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970) (quoting Shelton v. United States, 246 F.2d 571, 572 n. 2 (5th Cir.1957) (en banc), rev’d per curiam on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958)). Mathews does not deny that he was fully aware of the direct consequences of his plea. Nor does he allege that his plea was induced by threats, misrepresentations, or promises. Thus, under Brady, his plea must stand. Because Mathews could not have prevailed on his motion under 28 U.S.C. § 2255, dismissal was mandatory. AFFIRMED." }, { "docid": "5649564", "title": "", "text": "of his plea — specifically, the possibility that he could be sentenced as a career offender. Had Brown been aware of that possibility, he claims, he would not have pled guilty. Brown points to no provision of Rule 11 or judicial decision requiring that the district court inform a defendant of the potential sentencing enhancements that could apply under the Guidelines. Rather, our decisions hold that Rule 11 requires only that the court inform the defendant of the maximum statutory penalty that could be imposed and ensure the defendant is aware of the Guidelines and has discussed them with counsel. United States v. Mos ley, 173 F.3d 1318, 1327-28 (11th Cir.1999); Fed.R.Crim.P. 11(b)(1)(H),(M). Rule 11 does not require that a district court make the defendant aware of possible Guideline sentencing enhancements. See United States v. Bozza, 132 F.3d 659, 661 (11th Cir.1998); United States v. Pearson, 910 F.2d 221, 223 (5th Cir.1990) (holding that Rule 11 does not require district court to inform defendant of possibility of career offender enhancement); Fed.R.Crim.P. 11 advisory committee’s note (1989) (“Since it will be impracticable, if not impossible, to know which guidelines will be relevant pri- or to the formulation of a presentence report and resolution of disputed facts, [Rule 11] does not require the court to specify which guidelines will be important or which grounds for departure might prove to be significant.”). C. In addition to his Rule 11 challenges, Brown argues that his guilty plea is invalid under the Due Process Clause, because it was induced by a misrepresentation by the government. Brown contends that the probation officer handling his case and the prosecutor assured Rreiss, who in turn assured him, that he would not be subject to the career offender enhancement if he pled guilty. See Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 2547, 81 L.Ed.2d 437 (1984) (“[A] plea of guilty ... must stand unless induced by threats .... [or] misrepresentation (including unfulfilled or unfulfillable promises)”) (quotation omitted); Finch v. Vaughn, 67 F.3d 909, 914 (11th Cir.1995) (“[W]hen the defendant pleads guilty on a false premise in" }, { "docid": "23020364", "title": "", "text": "prevail on a claim that standby counsel was ineffective. See Morrison, 153 F.3d at 55. In short, none of Oliver’s arguments compel the conclusion that his plea or the appeal waiver was unknowing or involuntary. The record reveals that Oliver understood the nature of the charges, was admonished as to the constitutional rights he was waiving, and was advised of the potential sentences he faced. In addition, Oliver confirmed that he was entering a knowing and voluntary plea that was not the result of threats, undisclosed promises, or “side deals” not contained in the plea agreement. Every time Oliver was asked if he understood the court’s admonishments, he answered affirmatively. “Solemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (“The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.”); United States v. Washington, 480 F.3d 309, 316 (5th Cir.2007) (holding that the defendant’s “statements that his plea was knowing and voluntary and that he understood the rights he was waiving create a presumption that in fact the plea is valid”) (internal quotation marks omitted). In that same vein, the court did not err in failing to hold an evidentiary hearing to investigate the issue further, as Oliver stated under oath at the rearraignment hearing that he had read and understood the plea agreement. See United States v. Cervantes, 132 F.3d 1106, 1111 (5th Cir. 1998) (finding no error in district court’s refusal to hold an evidentiary hearing on ineffective assistance of counsel claim where, at rearraignment, the judge reiterated much of what was set forth in the plea agreement, which the defendant represented to the court that she read and understood); Clark v. Collins, 19 F.3d 959, 964 (5th Cir.1994). Oliver also argues that the waiver of the right to appeal his sentences violates United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because it is over broad. Without citing any authority," }, { "docid": "5922751", "title": "", "text": "Guidelines did not adequately account for Jones' criminal history, the court departed upwards and imposed a ten-year sentence on Count I and a concurrent five-year sentence on Count II. Jones timely appealed. Analysis Jones first attacks his convictions on guilty pleas, maintaining that the court's departure from the Guidelines rendered his guilty pleas involuntary because in deciding to plead guilty, he relied on his attorney's representation that he would be sentenced within the guideline computation. This argument lacks merit. Rule 11(c) of the Federal Rules of Criminal Procedure requires only that the defendant be informed of the maximum prison term and fine for the offense charged. \"As long as the [defendant] `understood the length of time he might possibly receive, he was fully aware of his plea's consequences.'\" United States v. Rivera, 898 F.2d 442, 447 (5th Cir.1990), quoting Barbee v. Ruth, 678 F.2d 634, 635 (5th Cir.), cert. denied, 459 U.S. 867, 103 S.Ct. 149, 74 L.Ed.2d 125 (1982). The Guidelines make no change in substantive penalties but rather \"provide a structure for case analysis so as to minimize disparate sentencing on like facts.\" Id. The district court is not required to calculate or explain the applicable guideline sentence before accepting a guilty plea, United States v. Fernandez, 877 F.2d 1138 (2d Cir.1989), and erroneous advice of defense counsel as to the guideline sentence does not constitute a violation of Rule 11, United States v. Turner, 881 F.2d 684 (9th Cir.), cert. denied, - U.S. -, 110 S.Ct. 199, 107 L.Ed.2d 153 (1989). Analogously, the court's decision to impose a sentence different than that indicated by the Guide lines does not render a guilty plea unknowing or involuntary. Before accepting the guilty pleas the court informed Jones both of the statutory maximum sentences and its authority to impose a sentence more severe than that indicated by the Guidelines. It then imposed sentences below the statutory maximum for Count I and at the statutory maximum for Count II. We hold that Jones’ pleas were knowing and voluntary. His challenges to their validity are rejected. Jones also challenges the adequacy of" } ]

[ { "docid": "6176877", "title": "", "text": "either new, or there is a Dew arrangement thereof. Nay. the right to a copy-right does much farther. A man has a right to a copy-right in a translation, upon which he has bestowed his time and labor. To be sure, another man has an equal right to translate the original work, and to publish his translation; but then it must be his own translation by his own skill and labor; and not the mere use and publication of the translation already made by another. Wyatt v. Barnard, 3 Ves. & B. 77. A man has a right to the copy-right of a map of a state or country, which he has surveyed or caused to be compiled from existing materials, at his own expense, or skill, or labor, or money. Another man may publish another map of the same state or country, by using the like means or materials, and the like skill, labor and expense. But then he has no right to publish a map taken substantially and designedly from the map of the other person, without any such exertise of skill, or labor, or expense. If he copies substantially from the map of thé other, it is. downright piracy; although it is plain that both maps must, the more accurate they are, approach nearer in design and execution to-each other. Matthewson v. Stockdale, 12 Ves. 270; Wilkins v. Aikin, 17 Ves. 422. He, in short, who by his own skill, judgment and labor, writes a new work, and does not merely copy that of another, is entitled to a copyright therein; if the variations are not merely formal and shadowy, from existing works. He, who constructs by a new plan, and arrangement, and combination of old materials, in a book designed for instruction, either of the young, or the old, has a title to a copyright, which cannot be displaced by showing that some part of his plan, or arrangement or combination, has been used before. The case of Gray v. Russell [Case No. 5,728] affords a strong illustration of the ■doctrijie, as that was a case" } ]

[ { "docid": "20790282", "title": "", "text": "OPINION BURNS, District Judge: Plaintiff brought this action for infringement of his copyright on a series of maps of the City of Ashland, Oregon. This Court has original and exclusive jurisdiction, pursuant to 28 U.S.C. § 1338(a) (1970). Maps are a specified class of material recognized as subject to copyright, 17 U.S.C. § 5(f) (1970); see Maps or Charts as Protected by Copyright Under Federal Copyright Act, 4 A.L.R. Fed. 466 (1970); cf. Copyright —Fair Use Doctrine, 23 A.L.R.3d 139, 274-281 (1969). Where there has been registration pursuant to 17 U.S.C. §§ 1-32 (1970), then a holder of the copyright may maintain proceedings for infringement, pursuant to 17 U.S.C. §§ 101-116 (1970). The parties tried the case on March 7th and 8th, 1973, before the Court in Medford session. After closing argument, the Court rendered an oral opinion on some of the issues before it. The Court made three findings of fact: (1) the two maps of Ashland, which the Defendant had printed and then circulated (Plaintiff’s Exhibit Nos. 6 and 7), are “substantially similar” to maps drafted by the Plaintiff; (2) the “source map” for the Defendant’s maps was either, (a) the map of Ashland prepared by the Plaintiff in 1968 (Plaintiff’s Exhibit No. 2), and recorded on the Register of Copyright under Registration No. F 49401 on August 15, 1969 (Plaintiff’s Exhibit No. 1), or, (b) the modified, reissue of the 1968 map prepared by the Plaintiff on the order of Red Arrow Realty (Plaintiff’s Exhibit No. 3); and (3) the Defendant had published and circulated 5,000 copies of his maps. The Court concluded that the Plaintiff’s registration of the 1968 map complied with the statutory requirements, 17 U.S.C. §§ 1-32 (1970). In his testimony the Plaintiff conceded an error in the date, 1969, placed within his logotype indicating the Plaintiff’s claim for copyright on the Red Arrow Realty map. The map was ordered and printed in the autumn of 1969, but the map was only a modified reprint of the 1968 map. The Plaintiff did not attempt to extend the term of his copyright, but used the" }, { "docid": "22771778", "title": "", "text": "which may be copyrighted with “ books, maps, charts, dramatic or musical compositions, engravings, cuts, prints, paintings, drawings, statues, statuary, and models or designs intended to be perfected as works of the fine arts.” “ According to the practice of legislation in England and America,” says Judge Bouvier, 2 Law Dictionary, 303, “ the copyright is confined to the exclusive right secured to the author or proprietor .of a Avriting or draAving Avhich may be multiplied by the arts of printing in any of its branches.” The first Congress of the United States, sitting immediately after the formation of the Constitution, enacted that the “ author or authors of any map, chart, book or books, being a 'citizen or resident of the United States, shall have the sole right and liberty of printing, reprinting, publishing and vending the same for the period of fourteen years from the recording of the title' thereof in the clerk’s office, as afterwards directed.” 1 Stat. 124, 1. This statute not only makes maps-and charts subjects of copyright, but mentions them before books in the order of designation. . The second section of an act to amend this act, approved April 29, 1802, 2 Stat. 171, enacts that from the first day of January thereafter, he who shall invent and design, engrave, etch or work, or from his own works shall cause to be designed and engraved, etched or worked, any historical or other print or prints shall have the same exclusive right for the term of fourteen years from recording the title thereof as prescribed by law. By the first section of the act of February 3d, 1831,. 4 Stat. 436, entitled an act to amend the several acts respecting copyright, musical compositions and cuts, in connection with prints and engravings, are added, and the period of protection is ex: tended to twenty-eight years. The caption or title, of this act uses the word copyright for the first time in the legislation of Congress. The construction placed upon the Constitution by the first act of 1790, and the act of 1802, by the men" }, { "docid": "12216224", "title": "", "text": "maps are uncopyrightable because they are not “original” under Feist. Although the district court applied the merger doctrine to hold that Mason’s maps are not copyrightable, it found that “the problem with the Hodge Mason maps is not a lack of originality.” Mason, 765 F.Supp. at 355. We agree that Mason’s maps are original. Originality does not require “novelty, ingenuity, or aesthetic merit.” H.R.Rep. No. 1476, 94th Cong., 2d Sess. 51 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5664; see also Feist, 111 S.Ct. at 1287. Instead, originality “means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” Feist, 111 S.Ct. at 1287 (citing 1 M. Nimmer & D. Nimmer, Copyright § 2.01[A]-[B] (1990)). The parties do not dispute Mason’s claim that he independently created his maps, but Landata contends that they do not possess the degree of creativity necessary to qualify them as original under Feist. Mason’s maps pass muster under Feist because Masons’ selection, coordination, and arrangement of the information that he depicted are sufficiently creative to qualify his maps as original “compilations” of facts. Under the originality standard, bare facts are never copyrightable “because facts do not owe their origin to an act of authorship.” Id. at 1288. A compilation of facts, however, may be copyrightable if the author made choices as to “which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers.” Id. at 1289. The author’s selection, coordination, and arrangement of facts, however, are protected only if they were “made independently ... and entail a minimal degree of creativity.” Id. In Feist, the Court held that the defendant, who copied a list of names, towns, and telephone numbers from the white pages of the plaintiff’s telephone directory, did not copy anything that was “original” to the plaintiff. Id. at 1296. The Court explained that the plaintiff’s selection of facts to publish — the name, town, and telephone number of each person" }, { "docid": "22127649", "title": "", "text": "to the multiplication of the copies, for the benefit of the author or his assigns, disconnected from the plate, or any other physical existence. It is an incorporeal right to print and publish the map, or, as said by Lord Mansfield in Miller v. Taylor, 4 Burr, 2396, 'a property in notion, and has no corporeal, tangible substance.’ ” This fact is emphasized when we note the- title to the act of Congress, passed at its first session — \"An act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and. proprietors of such copies, during the times therein mentioned.” 1 Stat. at Large, by Peters, chap..15, p. 124. In order to secure this right it was provided in that statute, as it has been in subsequent ones, that the authors of books, their executors, administrators, or assigns, shall have the “sole right and liberty of printing, reprinting; publishing, and vending” such book for a term of years, upon complying with the statutory conditions set forth in the act as essential to the acquiring of a valid copyright. Each and all of these statutory rights should be given such protection as the act of Congress requires, in order to secure the rights conferred upon authors and others entitled to the benefit of the act. Let us see more specifically what are the statutory rights, in this behalf, secured to one who has complied with the provisions of the law and become the owner of a copyright. They may be found in §§ 4952, 4965 and 4970 of the Revised Statutes of the United States, and are as follows: “Sec. 4952. Any citizen of the United States or resident therein, who shall be the author, inventor, designer or proprietor of any book, map, chart, dramatic or musical composition, engraving,, cut, print or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators or assigns of any such person, shall, upon complying with" }, { "docid": "22873879", "title": "", "text": "author, inventor, designer, refer to the originator of the book, map, -chart, painting, etc.,.and that the term “proprietor” refers to the person who has a copyrightable thing made for him under such circumstances as to become the proprietor, as, for instance, one who causes a digest to be compiled or a picture to be painted. But we think this statute must be construed in view of the character of the property intended to be protected. That it was intended to give the right of copyright to others than the author, inventor or designer is conclusively shown in the use of the terms “proprietor” and “assigns” in the statute. It seems clear that the word “assigns” in this section is not used as descriptive of the character of the estate which the “author, inventor, designer, or proprietor” may acquire under the statute, for the “assigns” of any such person, as well as tlie persons themselves, may, “upon complying with the provisions of this chapter,” have the sole liberty of printing, publishing and vending the same.K This would seem to demonstrate the intention- of Congress to vest m “assigns,” before copyright, the same privilege of subsequently acquiring complete statutory copyright as the original author, inventor, designer or proprietor has. Nor do we think this result is qualified because the statute gives to assigns, together with the right of publishing, vending, etc., the right of “completing, executing and finishing” the subject-matter of copyright: And a strong consideration in construing this statute has reference to the character of the property sought to be protected. It is not the physical thing created, but the right of printing, publishing, copying, etc;, which is within the statutory protection. While not in all respects analogous, this proposition finds illustration in Stephens v. Cady, 14 How. 528, in which it was held, where the copyright for map'had been taken out under the act of Congress, a sale upon execution of the copperplate engraving from which it was made did not pass the right to print and sell copies of the map. Mr. Justice Nelson, delivering the opinion of the" }, { "docid": "22062233", "title": "", "text": "parliament the book of common prayer, and a few other books. No such right at the common law had been recognized in England, when the colony of Penn was organized. Long afterwards, literary property became a subject of controversy, but the question was involved in great doubt and' perplexity ; .and a little more than a century ago, it was decided by the highest judicial court in England, that the right of authors could not be asserted at common law, but under the statute. The statute of 8 Anne was passed in 1710. Canil be contended, that this common law right, so involved in doubt as to divide the most learned jurists of England, at a period in her. history, as much distinguished by learning and talents as any oiher: was brought into the wilds of Pennsylvania by its first adventurers. Was it suited to their condition? But there is another view still more conclusive. In the eighth section of the first article of the constitution of the United States it is declared, that congress shall have power “ to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.” And in pursuance of. the power thus delegated, congress passed the act of the 30th of May 1790. This is entitled “ am a.ct for the encouragement of learning, by securing the copies of maps, charts and books, to the authors and proprietors of such copies, during the times therein mentioned.” In the first section of this act, it is provided, “ that from and after its passage, the author and authors of any map, chart, book ,or books, already printed within these United States, being a citizen, &c. who hath or have not transferred to any other person,the copyright of such, map, chart, book or books, &c. shall have, the sole right and- liberty of printing, reprinting, publishing and vending such map, book or books, for fourteen years.” In behalf of the common law right, an argument has been drawn from the word" }, { "docid": "22127650", "title": "", "text": "the act as essential to the acquiring of a valid copyright. Each and all of these statutory rights should be given such protection as the act of Congress requires, in order to secure the rights conferred upon authors and others entitled to the benefit of the act. Let us see more specifically what are the statutory rights, in this behalf, secured to one who has complied with the provisions of the law and become the owner of a copyright. They may be found in §§ 4952, 4965 and 4970 of the Revised Statutes of the United States, and are as follows: “Sec. 4952. Any citizen of the United States or resident therein, who shall be the author, inventor, designer or proprietor of any book, map, chart, dramatic or musical composition, engraving,, cut, print or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators or assigns of any such person, shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing and vending the same.” U. S. Comp. St. 1901, p. 3406. “Sec. 4965. If any person, after the recording of the title of any map, chart, musical composition, print, cut, engraving, or photograph or chromo, or of the description of any painting, drawing, statue, statuary, or model or design intended to be perfected and executed as a work of fine arts, as provided by this chapter, shall within the term limited, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, engrave, etch, work, copy, print, publish, or import, either in whole or in part, or by varying the main design with intent to evade the law, or knowing the same to be so printed, published, or imported, shall sell or expose to sale any copy of such, map or other article, as aforesaid, he shall forfeit to the proprietor all the plates on which the" }, { "docid": "11870665", "title": "", "text": "was not a party in either of the prior cases upon which he relies. Nor did those cases involve the same films or the same contractual agreements. This case involves an entirely separate factual issue (appellant’s guilt of infringing the copyrights on these particular films) between entirely separate parties. Sufficiency of Evidence Preliminary to a discussion of the evidence in this case, we consider the elements necessary to sustain a conviction of criminal copyright infringement and the Government’s burden of proof. We find only two reported cases involving criminal copyright infringement in violation of § 17 U.S.C. § 104 — United States v. Wells, supra, and United States v. Bily, 406 F.Supp. 726 (E.D.Pa.1975). In Wells the court granted defendant’s motion for acquittal on eight counts of criminal infringement of the copyright of aerial survey maps owned by Edgar Tobin. Tobin had licensed 107 of his customers to manufacture reproductions of his maps for their own use. Defendant was charged with selling, without authorization, copies of Tobin’s copyrighted maps. The pivotal issue was whether the copies sold by the defendant were copies which had been the subject of a first sale, thereby terminating .their statutory protection: “. . .If title has been retained by the copyright proprietor, the copy remains under the protection of the copyright law, and infringement proceedings may be had against all subsequent possessors of the copy who interfere with the copyright proprietor’s exclusive right to vend the copyrighted work. If title has passed to a first purchaser, though, the copy loses the protection of the copyright law as discussed above.” 176 F.Supp. at 633-634. The court found that “there has been no showing on the record that the copies of the aerial survey maps were not published by a lawful licensee of the copyright proprietor or that title to these copies was retained at all times by the copyright proprietor”. 176 F.Supp. at 633. Since the Tobin license did not specify that title to the reproduced maps was to remain in Tobin, title to the maps belonged to the licensees who, under the first sale doctrine," }, { "docid": "12216223", "title": "", "text": "grant Mason a monopoly over the idea, because other mapmakers can express the same idea differently. The protection that each map receives extends only to its original expression, and neither the facts nor the idea embodied in the maps is protected. “[T]he facts and ideas ... are free for the taking.... “[T]he very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas.” Feist, 111 S.Ct. at 1289 (quoting Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 Colum.L.Rev. 1865, 1868 (1990)). For these reasons, we conclude that the district court erred by applying the merger doctrine in this case. Because the idea embodied in Mason’s maps can be expressed in a variety of ways, the merger doctrine does not render Mason’s expression of that idea uncopyrightable. 2. The “Originality” Requirement Landata contends that, even if the merger doctrine does not apply, Mason’s maps are uncopyrightable because they are not “original” under Feist. Although the district court applied the merger doctrine to hold that Mason’s maps are not copyrightable, it found that “the problem with the Hodge Mason maps is not a lack of originality.” Mason, 765 F.Supp. at 355. We agree that Mason’s maps are original. Originality does not require “novelty, ingenuity, or aesthetic merit.” H.R.Rep. No. 1476, 94th Cong., 2d Sess. 51 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5664; see also Feist, 111 S.Ct. at 1287. Instead, originality “means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” Feist, 111 S.Ct. at 1287 (citing 1 M. Nimmer & D. Nimmer, Copyright § 2.01[A]-[B] (1990)). The parties do not dispute Mason’s claim that he independently created his maps, but Landata contends that they do not possess the degree of creativity necessary to qualify them as original under Feist. Mason’s maps pass muster under Feist because Masons’ selection, coordination," }, { "docid": "3896578", "title": "", "text": "to everybody, such as is found on maps, is protected only when the publisher of the map in question obtains originally some of that information by the sweat of his own brow. Almost anybody could combine the information from several maps onto one map, but not everybody can go out and get that information originally and then transcribe it into a map. “The plaintiff’s reputation as a qualified map maker cannot make copyrightable maps for him. He, or his agents, must first do some original work, get more than an infinitesimal amount of original information. With no reflection whatsoever upon the plaintiff’s ability as a map maker or upon other maps published and copyrighted by the plaintiff, it seems to me that the plaintiff’s map entitled ‘Map of Delaware County, Pa.’ is, for lack or (sic) original work, not subject to copyright.” 189 F.2d at 106. In the case before us Donald has contributed nothing more than the map maker in Amsterdam. While the “Agreement” is not identical to any single existing form, the substance of each sentence can be found in an earlier form. Thus, like the map in Amsterdam, Donald’s form is nothing more than a mosaic of the existing forms, with no original piece added. The Copyright Act was not designed to protect such negligible efforts. We reward creativity and originality with a copyright but we do not accord copyright protection to a mere copycat. As one noted authority has observed, “to make the copyright turnstile revolve, the author should have to deposit more than a penny in the box.” B. Kaplan, An Unhurried View of Copyright 46 (1966). In our case not even the proverbial penny has been placed in the box. Indeed the box is virtually empty. We hold, therefore, that Donald’s copyright is invalid for lack of originality. Having concluded that Donald’s “Agreement” was not subject to copyright, we think it goes without saying that Moore’s use of the form language was not an infringement; The only remaining questions concern the assessment of costs and attorney’s fees. The trial court assessed the costs of" }, { "docid": "12216237", "title": "", "text": "Coast and Geodetic Survey. .The USGS has mapped much of the United States, including Montgomery County. Most private mapmakers, like Mason, use USGS topographical maps as starting points for their own maps. See David B. Wolf, Is There any Copyright Protection for Maps after Feist?, 39 J. Copyright Soc'y USA 224, 226 (1992). . Mason argues that application of the merger doctrine does not render a work uncopyrightable, but rather prevents a finding of infringement of an otherwise copyrightable work. See Kregos v. Associated Press, 937 F.2d 700, 705 (2d Cir.1991) (Second Circuit \"has considered this so-called ‘merger’ doctrine in determining whether actionable infringement has occurred, rather than whether a copyright is valid”). But this court has applied the merger doctrine to the question of copyrightability. See Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458, 1460 (5th Cir.) (because the idea and its expression embodied in plaintiffs maps are inseparable, “the maps at issue are not copyrightable\"), cert, denied, — U.S.-, 111 S.Ct. 374, 112 L.Ed.2d 336 (1990). In any event, because we find the merger doctrine inapplicable in this case, the effect of its application is irrelevant. . One of the experts, Pliny M. Gale, examined Mason’s maps and the competitors’ maps and concluded that: the assembly, graphic representation, and positioning of various records and features involves considerable skill, judgment and originality. ... The differences I note between the Mason maps and the other maps which I have examined are to be expected because of the numerous interpretations of records, individual judgments, and map base selection which must be taken into account when producing an ownership map based on a large number of instruments spanning over 100 years of development. In my inspection of the maps, I found that the Mason map includes many features which are unique to the graphic representations selected by Mason, and which do not appear in any public record information. Gale Aff. at 2-4. Another mapmaker, Milton R. Hanks, stated: In compiling a map as detailed and complex as the Mason maps of Montgomery County, the mapmaker will necessarily make many" }, { "docid": "22062234", "title": "", "text": "shall have power “ to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.” And in pursuance of. the power thus delegated, congress passed the act of the 30th of May 1790. This is entitled “ am a.ct for the encouragement of learning, by securing the copies of maps, charts and books, to the authors and proprietors of such copies, during the times therein mentioned.” In the first section of this act, it is provided, “ that from and after its passage, the author and authors of any map, chart, book ,or books, already printed within these United States, being a citizen, &c. who hath or have not transferred to any other person,the copyright of such, map, chart, book or books, &c. shall have, the sole right and- liberty of printing, reprinting, publishing and vending such map, book or books, for fourteen years.” In behalf of the common law right, an argument has been drawn from the word secure, which is used in relation to this right, both in the constitution and in the acts of congress. This word, when .used as a’verb active, signifies to protect, insure, save, ascertain, .&c. The counsel for the complainants insist that the term, as used, clearly indicates an intention, not to originate a right, but to protect one already in existence. There is no mode by which the meaning affixed to any word or sentence, by a deliberative body, can be so well ascertained, as by comparing it with the words and sentences with which it stands connected. By this rule the word secure, as used in the constitution, could not mean the protection of an acknowledged legal right. It refers to inventors, as well as authors, and it has never been pretended, by any one, either in this country or in England, that an inventor has a perpetual right, at common law, to sell the thing invented. And if the word secure is used in the constitution, in reference to a future right, was it" }, { "docid": "13637896", "title": "", "text": "designer or proprietor of any book, map, etc., upon complying with the provisions of this section, “ shall have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing and vending the same.” This is the section creating the right. Section 4963 provides for a penalty of $100 for falsely inserting or impressing a copyright notice where no copyright has been obtained. The penalty in this section .is recoverable, one- half for the person suing for the same, and one-half to the use of the United States; and the Circuit - Courts of the United States sitting in equity are authorized to enjoin the issuing, publishing or selling of articles marked or imported in. violation of the copyright laws of the United States. By § 4964 it is provided, as to books, that those who print, publish, dramatize, translate or import the same, without the consent of the proprietor of the copyright, signed in the presence ^>f two witnesses, or who knowing the same tó be so printed, published, dramatized and translated or imported, shall sell, or expose to sale any copies of such article; shall forfeit every copy thereof to the proprietor of the copyright, and shall also forfeit and pay such damages as may be recovered in a civil action by the proprietor of the copyright in any court of competent jurisdiction. Here is a specific remedy given to recover damages for books wrongfully printed or published, etc., in violation of the act. While Congress conferred this action to protect copyrighted books, for some reason it does not include the holders of copyrighted maps within its provisions. Section 4965 relates to the owners of copyrights on maps, charts,'etc., and provides for the forfeiture of plates and copies, and for the recovery of money penalties in certain cases, one-half of the penalty to go to the proprietor of the copyright, the other half to the use of the United States.' Section 4966 gives remedies for damages against those wrongfully performing or representing a dramatic- or musical composition,. in public, such.damages to-be assessed at such sum, not less than" }, { "docid": "6176878", "title": "", "text": "the other person, without any such exertise of skill, or labor, or expense. If he copies substantially from the map of thé other, it is. downright piracy; although it is plain that both maps must, the more accurate they are, approach nearer in design and execution to-each other. Matthewson v. Stockdale, 12 Ves. 270; Wilkins v. Aikin, 17 Ves. 422. He, in short, who by his own skill, judgment and labor, writes a new work, and does not merely copy that of another, is entitled to a copyright therein; if the variations are not merely formal and shadowy, from existing works. He, who constructs by a new plan, and arrangement, and combination of old materials, in a book designed for instruction, either of the young, or the old, has a title to a copyright, which cannot be displaced by showing that some part of his plan, or arrangement or combination, has been used before. The case of Gray v. Russell [Case No. 5,728] affords a strong illustration of the ■doctrijie, as that was a case confessedly of a mere improvement of an old work, Adams’s Latin Grammar, a subject that had been •discussed and treated in many hundred works, and in which little more could be •done than to arrange the materials upon a new plan, or in a new combination, with •additional illustrations and initial remarks. Yet the court held it clearly to be the subject ■of a copy-right; and from the doctrine therein stated I feel not the slightest inclination to depart It was upon the like ground that ■an action has been held to lie for the recovar •of damages for pirating the new corrections and additions to an old work, (the Itinerancy of England.) Upon that occasion, Lord Kenyon said: “The courts of justice have been long laboring under an error, if an ■author have no copy-right in any part of a book, unless he have an exclusive right to the whole book.” See, also, Trusler v. Murray, and Tonson v. Walker, cited in 1 East, •360, 361, and notes. Another illustration may be found in" }, { "docid": "22945782", "title": "", "text": "which we take of the law, is whether there was a publication of the painting. The defendants raised this issue by the plea, and thereby invited a presentation of the facts decisive of said question. The statutes provide as follows: “Sec. 4962. That no person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title page or the page immediately following, if it be a book, or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some visible portion thereof, or of the substance on which the same shall be mounted, the following words, viz.: ‘Entered according to act of Congress, in the year,-, by A. B., in the office of the librarian of Congress, at Washington;’ or, at his option, the word ‘Copyright,’ together with the year the copyright was entered, and the name of the party by whom it was taken out; thus ‘Copyright, 18—, by A. B.’ ” [U. S. Comp. St. 1901, p. 3411.] “Sec. 4952. The author, inventor, designer or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators or assigns of any such person shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing and vending the same; and, in the case of dramatic composition, of publicly performing or representing it or causing it to be performed or represented by others; and authors or their assigns shall have the exclusive right to dramatize and translate any of their works for which copyright shall have been obtained under the laws of the United States.” [U. S. Comp. St. 1901, p. 3406]. “Sec. 4955." }, { "docid": "22771777", "title": "", "text": "authorized: “ To promote the progress of science and useful arts, by securing, for limited times to authors and inventors, the exclusive right to their respective writings and discoveries.” The argument here is, that a photograph is not a writing nor the production of an author. Under the acts of Congress designed to give effect to this section, the persons who are to be benefited are divided into two classes, authors and inventors. The monopoly which is granted to the former is called a copyright, that given to the latter, letters patent, or, in the familiar language of the present day, patent right. We have, then, copyright and .patent right, and it is the first of these under which plaintiff asserts a claim for relief. It is insisted in argument, that a photograph being a reproduction on paper of the exact features of some natural object or of some person, is not a writing of which the producer is the author. Section 1952 of the Revised Statutes places photographs in the same class as things which may be copyrighted with “ books, maps, charts, dramatic or musical compositions, engravings, cuts, prints, paintings, drawings, statues, statuary, and models or designs intended to be perfected as works of the fine arts.” “ According to the practice of legislation in England and America,” says Judge Bouvier, 2 Law Dictionary, 303, “ the copyright is confined to the exclusive right secured to the author or proprietor .of a Avriting or draAving Avhich may be multiplied by the arts of printing in any of its branches.” The first Congress of the United States, sitting immediately after the formation of the Constitution, enacted that the “ author or authors of any map, chart, book or books, being a 'citizen or resident of the United States, shall have the sole right and liberty of printing, reprinting, publishing and vending the same for the period of fourteen years from the recording of the title' thereof in the clerk’s office, as afterwards directed.” 1 Stat. 124, 1. This statute not only makes maps-and charts subjects of copyright, but mentions" }, { "docid": "3896577", "title": "", "text": "case had used several existing maps but little independent original research of his own to prepare a map upon which he claimed a copyright. In denying his map copyright protection from a claimed infringement, the court, adopting the language of the trial court, said: “To make his map, the plaintiff had to determine only what information he was going to use from other maps, the emphasis to be given to that information and the coloring scheme and symbols he was going to use. When he finished, his map by comparison was a new map that contained some information that was not on any one of his base maps but was collectively on all of these maps. “Is this exercise of judgment and discretion by the plaintiff the type of original work that is intended to be protected by the Copyright Act? I think not. “* * * The presentation of ideas in the form of books, movies, music and other similar creative work is protected by the Copyright Act. However, the presentation of information available to everybody, such as is found on maps, is protected only when the publisher of the map in question obtains originally some of that information by the sweat of his own brow. Almost anybody could combine the information from several maps onto one map, but not everybody can go out and get that information originally and then transcribe it into a map. “The plaintiff’s reputation as a qualified map maker cannot make copyrightable maps for him. He, or his agents, must first do some original work, get more than an infinitesimal amount of original information. With no reflection whatsoever upon the plaintiff’s ability as a map maker or upon other maps published and copyrighted by the plaintiff, it seems to me that the plaintiff’s map entitled ‘Map of Delaware County, Pa.’ is, for lack or (sic) original work, not subject to copyright.” 189 F.2d at 106. In the case before us Donald has contributed nothing more than the map maker in Amsterdam. While the “Agreement” is not identical to any single existing form, the substance" }, { "docid": "23157241", "title": "", "text": "in the present case were insufficient and ineffectual for that purpose. ' The Revised Statutes of the United States secure to the author, inventor or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print or photograph, and to the executors, administrators or assigns of such person, the sole liberty of printing, reprinting, publi^ing, completing, copying, executing, finishing and vending the same, upon complying with certain provisions. Sec. 4952. One of those provisions is, that the person seeking a copyright shall, before publication, deliver at the office of the Librarian of Congress, or deposit in the mail addressed to such librarian, a printed copy of the book or other article for which he desires a copyright, and within ten days from the publication thereof deliver at the office of such librarian, or’deposit in the mail addressed to him, two copies of such copyright book or other article. Sec. 4956. They also provide that no person shall maintain an action for the infringement of his copyright unless he has given notice thereof by inserting in the several copies of every edition published,- on the title page or the page immediately following, if it be a book; or if a map, chart, musical composition, print, cut, engraving or photograph, by inscribing upon some portion of the face or front thereof, or on the face of the substance ' on which the same shall be mounted, the following words: “Entered according to act of Congress, in the year- ■-, by A. B., in the office of the Librarian of Congress at Washington.” Sec. 4962. The act of June 18, 1874, 18 Stat. c. 301, p. 78, changes the previous la^ in some respects. It allows, in place of the statement of entry in the office of the librarian, the simple use of the word “ copyright,” with the addition of the year it was entered and'the name of the party by whom it was'taken out. It also declares that the words “ engraving,” “ cut ” and “ print ” •shall be applied only to • pictorial illustrations or works" }, { "docid": "7827637", "title": "", "text": "tourist maps, claimed that another mapmaker had infringed its copyright. The court upheld Streetwise’s copyright based upon the “expressive elements in its map, including col- or, to depict the map’s factual content.” Id. at 747. The court then found that Streetwise’s competitor had not infringed upon that copyright because the two maps left “sufficiently different impressions” and thus were not “substantially similar.” See Streetwise at 746-47. In deciding the infringement issue, the court noted that some of the similar elements of the maps were standard cartographic conventions. The Court also noted that there were substantial differences in the places of interest identified on the maps. Plaintiff attempts to distinguish its situation from the mapmaker’s in Streetwise by noting that the only original elements of Streetwise’s map were the colors and gridlines used. Plaintiff states that Streetwise is not relevant to the case at hand because it did not address “the copy-rightability of: elevation measurements ... used to develop land contours; renderings of specific terrain; measurements and renderings of underground facilities; outlines or footprints of buildings; plans for location of building features; plans for location of trees, curbs, and utility needs— all of the things Plaintiffs site map included.” (Plaintiffs Objs. To Report of Magistrate Judge Smith at 8.) Plaintiff instead analogizes his case to Rockford Map Publishers, Inc. v. Directory Service Company of Colorado, Inc., 768 F.2d 145, 149 (7th Cir.1985), where the court held that a mapmaker who created plat maps showing the location, size and ownership of land was entitled to copyright protection because his work was a “new arrangement or presentation of facts.” Id. After oral argument, I am convinced that Judge Smith was correct when she concluded that there were genuine issues of material fact that would preclude summary judgment on this claim. Much of defendants’ argument relies on plaintiffs use of standard cartographic conventions to create a map of existing features of a piece of property, and they are clearly correct when they arg-ue that things like elevation measurements used to develop land contours “are not copyrightable — at least since the so-called “sweat of" }, { "docid": "22127648", "title": "", "text": "have not been so published. In the former case ownership is limited to a term of years; in the latter it is perpetual. The rights do not coexist in the same composition; when the statutory right begins the common-law right ends. Both may be defeated by publication. Thus, when a work is published in print, the owner’s common-law rights are lost, and, unless the publication be in accordance with the requirements of the statute, the statutory right is not secured.” While the nature of the property and the protection intended to be given the inventor or author as the reward of genius or intellect in the production of his book or work of art is to be considered in construing the act of Congress, it is evident that to secure the author the right to multiply copies of his work may be said to have been the main purpose of the copyright statutes. Speaking for this court in Stephens v. Cady, 14 How. 528, 530, Mr. Justice Curtis said: \"The copyright is an exclusive right to the multiplication of the copies, for the benefit of the author or his assigns, disconnected from the plate, or any other physical existence. It is an incorporeal right to print and publish the map, or, as said by Lord Mansfield in Miller v. Taylor, 4 Burr, 2396, 'a property in notion, and has no corporeal, tangible substance.’ ” This fact is emphasized when we note the- title to the act of Congress, passed at its first session — \"An act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and. proprietors of such copies, during the times therein mentioned.” 1 Stat. at Large, by Peters, chap..15, p. 124. In order to secure this right it was provided in that statute, as it has been in subsequent ones, that the authors of books, their executors, administrators, or assigns, shall have the “sole right and liberty of printing, reprinting; publishing, and vending” such book for a term of years, upon complying with the statutory conditions set forth in" } ]

[ { "docid": "22341077", "title": "", "text": "had it removed to federal court in the Southern District of Illinois. The district judge decided that Shaw’s state law strict liability and negligence claims for failure to warn were pre-empted by the Federal Insecticide, Fungicide and Rodenticide Act, more commonly and easily referred to as FIFRA, 7 U.S.C. § 136 et seq.. Based on a recent Supreme Court decision, we affirm the district court’s pre-emption finding. We also hold that Shaw is properly in federal court despite two vexing jurisdictional issues that, inexplicably, did not come up until we raised the matter with the parties just before oral argument. Plaintiffs first jurisdictional claim (when prodded by our order of December 29, 1992) is that-the $50,000 jurisdictional minimum in a diversity case has not been met. 28 U.S.C. § 1332(b). Any defect in the removal procedure, or the lack of subject matter jurisdiction, requires a remand. In re Amoco Petroleum Additives Co., 964 F.2d 706, 708 (7th Cir.1992). Jurisdiction exists in a removal action if the case might have been brought in federal court to begin with. Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 702, 92 S.Ct. 1344, 1347, 31 L.Ed.2d 612 (1972). Normally, the federal court in a removal action determines the amount in controversy by merely looking at plaintiffs state court complaint, Davenport v. Proctor & Gamble Mfg. Co., 241 F.2d 511, 513 (2d Cir.1957), along with the record as a whole. See Oglesby v. RCA Corp., 752 F.2d 272, 275, 278 (7th Cir.1985). In Illinois, however, tort claimants may not specify exact damages in their complaint beyond a limit set by the local circuit court rule. Ill.Rev.Stat. 735 ILCS 5/2-604. Thus Shaw’s complaint, which in accordance with Illinois law and the local rule asked only for damages “in excess of $15,000” (R. 2 at 18), gives no hint whether the real amount in controversy is greater than $50,000, in which case we have subject matter jurisdiction, or between $15,000 and $50,000, in which case we don’t. Dow’s petition for removal stated a good faith belief that the amount in controversy was greater than $50,000 (R." } ]

[ { "docid": "12037079", "title": "", "text": "remand, the Court now is prepared to rule. Discussion A. Legal Standard Under 28 U.S.C. § 1441, “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). See also Butter Trucking Co. v. Owner Operator Indep. Driver Risk Retention Group, Inc., 461 F.Supp.2d 768, 771 (S.D.Ill.2006). The party seeking removal has the burden of establishing federal jurisdiction. See Lyerla v. Amco Ins. Co., 461 F.Supp.2d 834, 835 (S.D.Ill.2006) (citing Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540 (7th Cir.2006)); Brooks v. Merck & Co., 443 F.Supp.2d 994, 998 (S.D.Ill.2006); McNichols v. Johnson & Johnson, 461 F.Supp.2d 736, 738 (S.D.Ill.2006). “ ‘Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum.’ Put another way, there is a strong presumption in favor of remand.” Kuntz v. Illinois Cent. R.R. Co., 469 F.Supp.2d 586, 589 (S.D.Ill.2007) (quoting Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993)). See also Alsup v. 3-Day Blinds, Inc., 435 F.Supp.2d 838, 841 (S.D.Ill.2006) (“Doubts concerning removal must be resolved in favor of remand to the state court.”); Cassens v. Cassens, 430 F.Supp.2d 830, 837 (S.D.Ill.2006) (“[D]oubts about federal jurisdiction on removal are to be resolved in favor of remand.”). B. Subject Matter Jurisdiction As discussed, Plaintiffs have moved for remand on the grounds both that the requirements for the exercise of federal subject matter jurisdiction under SLUSA and the procedural requirements for removal under 28 U.S.C. § 1446(b) are not met in this case. Because “issues affecting a federal court’s subject matter jurisdiction are ‘fundamentally preliminary,’ ” the Court will address first the question of subject matter jurisdiction before turning to Plaintiffs’ arguments concerning procedural defects in removal. In re General Motors Corp. Dex-Cool Prods. Liab. Litig., 241 F.R.D. 305, at 308, 2007 WL 522300, at *2 (S.D.Ill.2007) (quoting Leroy v. Great W." }, { "docid": "3260299", "title": "", "text": "as other courts do not appear to distinguish between responses to interrogatories and requests for admission for purposes of satisfying Local Rule 81.2, see e.g., Lilly v. Ford Motor Co., 2001 WL 1001158 at *1 (N.D.Ill.2001), we are not inclined to split these hairs. However, the decision on whether remand is proper in this case does not hinge on procedural impropriety because we find that defendant does not establish a reasonable probability of diversity jurisdiction. To remove a case to federal court, the defendant must prove to a reasonable probability that federal jurisdiction exists. Haran v. Medtronic, Inc., 1998 WL 575278 at *1 (N.D.Ill.1998). Because the parties agree that they are diverse, their dispute is over the amount in controversy. In the case of diversity jurisdiction, the defendant “has the burden of establishing by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional minimum.” Id. at *2 (citing Shaw v. Dow Brands, Inc., 994 F.2d 364, 366 (7th Cir.1993)). In determining whether there is diversity jurisdiction, the court must weigh only the evidence available at the time the petition for removal was filed. Chase v. Shop ‘N Save Warehouse Foods, Inc., 110 F.3d 424, (7th Cir.1997). Thus, the court should not root its decision in predictions about what the plaintiff may do in the future. Courts resolve all doubts regarding federal jurisdiction in favor of remand. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993); CC Industries v. ING/ReliaStar Life Insurance Co., 2003 WL 21360905 at *2 (N.D.Ill.2003). We recognize that the facts of Hahn v. Coca-Cola, No. 04 C 3596 (N.D.Ill.2004), in which Judge Conlon denied the plaintiffs motion to remand, mirror the facts in this case. Yet, we do not find that PepsiCo has met its burden for removal. To determine whether there is diversity jurisdiction the court begins with the complaint. Chase, 110 F.3d at 427 (“The starting point in determining the amount in controversy is typically the face of the complaint....\") Harem, 1998 WL 575278 at *2. Plaintiffs’ complaint contains clear statements that they “seek no relief, cause of action, remedy" }, { "docid": "11700312", "title": "", "text": "County Collector of County of Winnebago, Ill., 96 F.3d 890, 895 (7th Cir.1996). Because a federal court’s jurisdiction is limited, it has a “non-delegable duty to police the limits of federal jurisdiction with meticulous care.” Market St. Assocs. Ltd. P’ship v. Frey, 941 F.2d 588, 590 (7th Cir.1991). See also Fed.R.Civ.P. 12(h)(3); Krueger v. Cartwright, 996 F.2d 928, 930 (7th Cir.1993). “[Pjolicing the border of federal jurisdiction” is both a duty and a constitutional “necessity.” Unified Catholic Schs. of Beaver Dam Educ. Ass’n v. Universal Card Servs. Corp., 34 F.Supp.2d 714, 717 n. 2 (E.D.Wis.1999). Removal based on diversity jurisdiction requires that the parties be of diverse state citizenship and that the amount in controversy exceed $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332; Id. § 1441. The party seeking removal has the burden of establishing federal jurisdiction. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). “Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum.” Id. Put another way, there is a strong presumption in favor of remand. See Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976). In evaluating diversity of citizenship, a court must disregard a defendant that has been fraudulently joined. See Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir.1999). A defendant is fraudulently joined when “there is no possibility that a plaintiff can state a cause of action against [the] nondi-verse defendant ] in state court, or where there has been outright fraud in plaintiffs pleading of jurisdictional facts.” Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir.1993). A defendant seeking removal based on fraudulent joinder has the “heavy” burden of proving that, after the court resolves all issues of law and fact in the plaintiffs favor, there is no possibility that the plaintiff can establish a cause of action against a diversity-defeating defendant in a state court. Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir.1992). See also Tom’s Quality Millwork, Inc. v. Delle Vedove USA," }, { "docid": "11700311", "title": "", "text": "jurisdiction. McNichols has requested remand of the action to Illinois state court for lack of subject matter jurisdiction. At issue here are Count IV and Count X of McNichols’ complaint, which assert, respectively, a claim in strict products liability that Ortho Evra failed to conform to representations about the product made by the Johnson & Johnson Defendants and Walgreens and a claim for breach of warranty against Walgreens based upon McNichols’ purchase of Ortho Evra at a Walgreens pharmacy in Glen Carbon, Illinois. The Johnson & Johnson Defendants contend that McNichols has fraudulently joined Walgreens because her claims against Walgreens are barred by the “learned intermediary” doctrine under Illinois law. Disgussion A. Legal Standard Federal courts are courts of limited jurisdiction, with power to hear a case only if such power is granted by the Constitution and authorized by statute, and the presumption is that a case lies outside of this limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Application of County Collector of County of Winnebago, Ill., 96 F.3d 890, 895 (7th Cir.1996). Because a federal court’s jurisdiction is limited, it has a “non-delegable duty to police the limits of federal jurisdiction with meticulous care.” Market St. Assocs. Ltd. P’ship v. Frey, 941 F.2d 588, 590 (7th Cir.1991). See also Fed.R.Civ.P. 12(h)(3); Krueger v. Cartwright, 996 F.2d 928, 930 (7th Cir.1993). “[Pjolicing the border of federal jurisdiction” is both a duty and a constitutional “necessity.” Unified Catholic Schs. of Beaver Dam Educ. Ass’n v. Universal Card Servs. Corp., 34 F.Supp.2d 714, 717 n. 2 (E.D.Wis.1999). Removal based on diversity jurisdiction requires that the parties be of diverse state citizenship and that the amount in controversy exceed $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332; Id. § 1441. The party seeking removal has the burden of establishing federal jurisdiction. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). “Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum.” Id. Put another way, there" }, { "docid": "22268698", "title": "", "text": "After simply assuming jurisdiction, the district court proceeded to dismiss Doe’s suit against Allied as a rehash of Doe I and sent the claim against Acme back to state court. The court’s resolution of Doe II was mistaken. A federal court may remove to its jurisdiction a civil suit filed in state court so long as the district court has original jurisdiction. 28 U.S.C. § 1441. Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum. Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571, 576 (7th Cir.1982), certiorari denied, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618. Any doubt regarding jurisdiction should be resolved in favor of the states. Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976), and the burden of establishing federal jurisdiction falls on the party seeking removal. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921). One measure of the limited scope of the removal power is the well-established doctrine that a case may not be heard in district court when the only federal question posed is raised by a defense argument, even if the plaintiff anticipated the defense argument and even if both parties concede the federal question is the only real issue in the case. Caterpillar, Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 2430, 96 L.Ed.2d 318 (1987). There is no dispute that the district court lacked diversity jurisdiction in this case, meaning that the court only had subject matter jurisdiction if it was able to pluck a legitimate federal question out of the filings. Courts usually determine jurisdiction based on a well-pleaded complaint. See Poulos v. Naas Foods, Inc., 959 F.2d 69, 72 (7th Cir.1992) (noting existence of well-pleaded complaint rule). Indeed, a plaintiff may avoid federal court even though certain federal questions may be implicit in his or her claim. Id. (citing Louisville & N.R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). However, a plaintiff may not dodge federal court, and so" }, { "docid": "404550", "title": "", "text": "federal court pursuant to 28 U.S.C. § 1441, which provides in relevant part: Except as otherwise expressly provided by Act of Congress, any civil action brought in State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending____ 28 U.S.C. § 1441(a). Under the removal statute, “it is generally true that if a case could not originally be brought in federal court it may not be removed there.” McCarty v. Amoco Pipeline Co., 595 F.2d 389, 393 (7th Cir.1979), citing 1 JAMES W. MOORE, ET AL., MOORE’S FEDERAL PRACTICE ¶ 0.91[1] at 845-46 n. 10 (1st ed. 1978). Thus, once removed, a federal court may entertain the case only if the court has subject matter jurisdiction over the removed case. Furthermore, the burden is on the party seeking to remove, and the case should be remanded if there is doubt as to the right of removal. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). See also, Casey v. Hinckley & Schmitt, Inc., 815 F.Supp. 266, 267 (N.D.Ill.1993). A concise description of removal jurisdiction was provided by the Seventh Circuit in Alliedr-Signal: A federal court may remove to its jurisdiction a civil suit filed in state court so long as the district court has original jurisdiction. Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum. Any doubt regarding jurisdiction should be resolved in favor of the states, and the burden of establishing federal jurisdiction falls on the party seeking removal. One measure of the limited scope of the removal power is the well-established doctrine that a case may not be heard in district court when the only federal question posed is raised by a defense argument, even if the plaintiff anticipated the defense argument and even if both parties concede the federal question is the only real issue in the ease____ Courts usually determine jurisdiction based on" }, { "docid": "19912166", "title": "", "text": "jurisdiction when: (1) it filed its June 23, 2006 complaint; and (2) after filing its motion to remand it requested that the Court grant a temporary restraining order. Alternatively, defendants argue plaintiff is judicially es-topped from objecting to removal because it has taken inconsistent positions and it has engaged in blatant forum shopping. Finally, defendants argue plaintiff is not entitled to an award of attorneys’ fees because removal was substantially justified and not contrary to settled law. A. Plaintiffs motion to remand Generally, removal is appropriate only if a federal district court has original jurisdiction over the action. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993)(citing 28 U.S.C. § 1441). The party seeking removal bears the burden of establishing federal jurisdiction and removal statutes are narrowly construed. Id. (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921); Illinois v. Kerr-McGee Chem. Corp., 677 F.2d 571, 576 (7th Cir.1982), cert. denied, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618). Additionally, any doubt regarding jurisdiction should be resolved in favor of the states. Id. (citing Jones v. Gen. Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976)). Accordingly, as a preliminary matter, the Court must address whether it has original jurisdiction over this action. Federal courts are courts of limited jurisdiction. They can adjudicate only those cases that the Constitution and Congress authorize them to adjudicate which generally are those in which: (1) the United States is a party, (2) a federal question is involved; or (3) diversity of citizenship exists. See Allstate Life Ins. Co. v. Hanson, 200 F.Supp.2d 1012, 1014 (E.D.Wis.2002) (iciting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). The United States is not a party to this action. Additionally, it is undisputed that this action does not involve a federal question. Accordingly, the Court has original jurisdiction over this action only if diversity of citizenship exists. Id. For jurisdictional purposes, plaintiff is a Delaware corporation with its principal place of business in the State of Minnesota." }, { "docid": "754250", "title": "", "text": "have all moved for summary judgment as to LaRoe’s claims on the grounds that they are non-manufacturer Defendants and thus subject to dismissal under Illinois law. LaRoe in turn has moved for remand of this action to state court for lack of subject matter jurisdiction. The motion for remand has been fully briefed, and the Court now is prepared to rule. Discussion A. Legal Standard Removal based on diversity requires that the parties be of diverse state citizenship and that the amount in controversy exceed $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332; Id. § 1441. See also Rubel v. Pfizer Inc., 361 F.3d 1016, 1017 (7th Cir.2004); Littleton v. Shelter Ins. Co., No. 99-912-GPM, 2000 WL 356408, at *1 (S.D.Ill. Mar. 9, 2000). The party seeking removal has the burden of establishing federal jurisdiction. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). “Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum.” Id. Put another way, there is a strong presumption in favor of remand. See Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976). See also Littleton, 2000 WL 356408, at *1 (“The removal statute, 28 U.S.C. § 1441, is construed narrowly, and doubts concerning removal are resolved in favor of remand.”). In evaluating diversity of citizenship, a court must disregard a defendant that has been fraudulently joined. See Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir.1999); Smith v. Shipping Utils., Inc., No. Civ. 05-500-GPM, 2005 WL 3133494, at *1 (S.D.I11. Nov. 23, 2005). A defendant is fraudulently joined when “there is no possibility that a plaintiff can state a cause of action against [the] nondiverse defendant[ ] in state court, or where there has been outright fraud in plaintiffs pleading of jurisdictional facts.” Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir.1993). A defendant seeking removal based on alleged fraudulent joinder has the “heavy” burden of proving that, after the court resolves all issues of law and fact in the plaintiffs" }, { "docid": "3260300", "title": "", "text": "the evidence available at the time the petition for removal was filed. Chase v. Shop ‘N Save Warehouse Foods, Inc., 110 F.3d 424, (7th Cir.1997). Thus, the court should not root its decision in predictions about what the plaintiff may do in the future. Courts resolve all doubts regarding federal jurisdiction in favor of remand. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993); CC Industries v. ING/ReliaStar Life Insurance Co., 2003 WL 21360905 at *2 (N.D.Ill.2003). We recognize that the facts of Hahn v. Coca-Cola, No. 04 C 3596 (N.D.Ill.2004), in which Judge Conlon denied the plaintiffs motion to remand, mirror the facts in this case. Yet, we do not find that PepsiCo has met its burden for removal. To determine whether there is diversity jurisdiction the court begins with the complaint. Chase, 110 F.3d at 427 (“The starting point in determining the amount in controversy is typically the face of the complaint....\") Harem, 1998 WL 575278 at *2. Plaintiffs’ complaint contains clear statements that they “seek no relief, cause of action, remedy or damages that would confer federal jurisdiction” and “expressly disclaim any individual damages in excess of $75,000.” Defendant maintains that plaintiffs’ objections to its requests for admission establish that the damages sought exceed $75,000. Yet, these objections neither negate nor contradict the assertions in their complaint. A plaintiff cannot block federal jurisdiction by refusing to acknowledge that the damages sought exceed the jurisdictional limit, when it is clear from the face of the complaint that the stated damages, if proven, would exceed the limit. See Lilly v. Ford Motor Co., 2001 WL 1001158 at *1 (N.D.Ill.2001). However, the plaintiff is the master of the complaint and, thus, “[i]t follows that the plaintiff may evade federal court by simply asking for less than the jurisdictional amount, so long as the plaintiff, should she prevail, isn’t legally certain to recover more.” Shaw v. Dow Brands, Inc., 994 F.2d 364, (7th Cir.1993). Defendant argues that plaintiffs will recover more than the jurisdictional limits if the class is not certified and (1) the named plaintiffs still seek disgorgement individually," }, { "docid": "19912165", "title": "", "text": "the restraining order was never issued and the evidentiary hearing never occurred because on June 26, 2006 at approximately 4:22 p.m. defendants filed their notice of removal. Defendants allege diversity jurisdiction pursuant to 28 U.S.C. § 1332 as grounds for removal. It is undisputed that this action does not involve a federal question. MEMORANDUM Plaintiff asserts both defendant Severini and defendant Lehrer are citizens of the State of Wisconsin. Accordingly, plaintiff argues defendants were prohibited from removing this action pursuant to the forum defendant rule expressed in 28 U.S.C. § 1441(b). As such, plaintiff argues this action must be remanded to the Circuit Court for Dane County, Wisconsin. Additionally, plaintiff argues it is entitled to an award of attorneys’ fees pursuant to 28 U.S.C. § 1447(c) because defendants improperly used removal to prevent the issuance of the temporary restraining order. Defendants do not dispute either their status as Wisconsin citizens or the existence of the forum defendant rule. However, defendants assert plaintiff waived its right to object to removal because it subjected itself to federal jurisdiction when: (1) it filed its June 23, 2006 complaint; and (2) after filing its motion to remand it requested that the Court grant a temporary restraining order. Alternatively, defendants argue plaintiff is judicially es-topped from objecting to removal because it has taken inconsistent positions and it has engaged in blatant forum shopping. Finally, defendants argue plaintiff is not entitled to an award of attorneys’ fees because removal was substantially justified and not contrary to settled law. A. Plaintiffs motion to remand Generally, removal is appropriate only if a federal district court has original jurisdiction over the action. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993)(citing 28 U.S.C. § 1441). The party seeking removal bears the burden of establishing federal jurisdiction and removal statutes are narrowly construed. Id. (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921); Illinois v. Kerr-McGee Chem. Corp., 677 F.2d 571, 576 (7th Cir.1982), cert. denied, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618). Additionally, any doubt regarding jurisdiction" }, { "docid": "754249", "title": "", "text": "& Sons, Inc., and Cassens Corporation, both of which are, like LaRoe, Illinois citizens, have been fraudulently joined to defeat diversity. The chain of distribution of the trailer which LaRoe claims caused his injury is alleged to be as follows. Cottrell, a Georgia citizen, is alleged to have manufactured the trailer, then sold it to Cassens & Sons, Inc. Cassens & Sons, Inc., is alleged to have sold the trailer to Kay S. Cassens, a Montana citizen, who then sold the trailer to KSC Leasing, LLC, a limited liability company of which she is the only member. KSC Leasing, LLC, is alleged to have sold or leased the trailer to LaRoe’s employer, Cassens Transport Company. The gist of Cottrell’s allegations of fraudulent joinder in this case is that, because Cassens & Sons, Inc., and Cassens Corporation are not the manufacturers of the trader alleged to have caused LaRoe’s injuries, those Defendants are subject to dismissal from this action under Illinois law. Additionally, Cassens & Sons, Inc., Cassens Corporation, KSC Leasing, LLC, and Kay S. Cassens have all moved for summary judgment as to LaRoe’s claims on the grounds that they are non-manufacturer Defendants and thus subject to dismissal under Illinois law. LaRoe in turn has moved for remand of this action to state court for lack of subject matter jurisdiction. The motion for remand has been fully briefed, and the Court now is prepared to rule. Discussion A. Legal Standard Removal based on diversity requires that the parties be of diverse state citizenship and that the amount in controversy exceed $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332; Id. § 1441. See also Rubel v. Pfizer Inc., 361 F.3d 1016, 1017 (7th Cir.2004); Littleton v. Shelter Ins. Co., No. 99-912-GPM, 2000 WL 356408, at *1 (S.D.Ill. Mar. 9, 2000). The party seeking removal has the burden of establishing federal jurisdiction. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). “Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum.” Id. Put another way, there is a strong" }, { "docid": "10415431", "title": "", "text": "and the principle stated in Burns, id. at 1095 (numerous citations omitted): Federal courts are courts of limited jurisdiction. While a defendant does have a right, given by statute, to remove in certain situations, plaintiff is still the master of his own claim. Defendant’s right to remove and plaintiffs right to choose his forum are not on equal footing; for example, unlike the rules applied when plaintiff has filed suit in federal court with a claim that, on its face, satisfies the jurisdictional amount, removal statutes are construed narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand. That identical approach is echoed in myriad opinions throughout the federal system'—including those from our own Court of Appeals, most recently in Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993) (again citations are omitted): Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum. Any doubt regarding jurisdiction should be resolved in favor of the states, and the burden of establishing federal jurisdiction falls on the party seeking removal. As chance would have it, this Court has had occasion to deal extensively with this problem in diversity cases, not only in its accustomed role as a district judge but also when sitting by designation on our Court of Appeals in Shaw v. Dow Brands, Inc., 994 F.2d 364, 371-78 (7th Cir.1993). Although this Court spoke as a dissenter in Shaw, the majority there did not at all disagree with the underlying principles that were voiced in this Court’s opinion — the panel majority reached a different result only because of some circumstances peculiar to that case. And those principles, as expressed not only by this Court in Shaw but by the majority opinion in that case (id. at 366), command remand here. First of all, under St Paul and its progeny defendants cannot force Ashley to take more than $50,000 in damages when he does not wish to do so. Complaint ¶ 8 and the corresponding provision of the prayer for relief must be read as St." }, { "docid": "1233262", "title": "", "text": "removal of this action. Finally, plaintiff requests an award of costs and attorneys’ fees pursuant to 28 U.S.C. § 1447(c). Defendants assert the Program is a nominal party to this controversy rather than a real party in interest because it does not have a substantial stake in the outcome of this action. Additionally, defendants assert the Program is not an arm of the State of Wisconsin which renders it a citizen of the State for diversity purposes making removal of this action proper. Accordingly, defendants argue plaintiff’s motion to remand should be denied. Additionally, defendants argue removal is not prohibited by the Eleventh Amendment because this action has not been commenced against the Program and it is not being prosecuted against the Program. Finally, defendants request costs and attorneys’ fees incurred in opposing plaintiffs motion to remand. Generally, removal is appropriate only if a federal district court has original jurisdiction over the action. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993)(aimp 28 U.S.C. § 1441). The party seeking removal bears the burden of establishing federal jurisdiction and removal statutes are narrowly construed. Id. (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921); Ill. v. Kerr-McGee Chem. Corp., 677 F.2d 571, 576 (7th Cir.1982), cert. denied, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618 (1982)). Additionally, any doubt regarding jurisdiction should be resolved in favor of the states. Id. (citing Jones v. Gen. Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976)). The removal statute provides in relevant part as follows: ... any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the ... defendants 28 U.S.C. § 1441(a). It is undisputed that plaintiffs action does not involve a federal question. Accordingly, the Court has original jurisdiction of this action only if diversity of citizenship exists. The diversity statute provides in relevant part as follows: The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum" }, { "docid": "18419587", "title": "", "text": "Inc., Jeff Cassens, Allen Cassens, the Allen Cassens Trust, the Albert Cassens Trust, Albert Cassens, A.C. Leasing Company, KSC Leasing, LLC, Jeff Cassens Leasing, Inc., FTL, Inc., Marysville Releasing, Inc., Cassens Transport Company, Dwight Kay, and Mark Shashek, have been fraudulently joined to defeat diversity jurisdiction. The Younts have moved for remand of this case to state court on the basis of procedural defects in removal. The motion for remand has been fully briefed, and the Court now is prepared to rule. Discussion A. Legal Standard Removal based on diversity requires that the parties be of diverse state citizenship, that is, no plaintiff may be a citizen of the same state as any defendant, and that the amount in controversy exceed $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332; Id. § 1441. See also Rubel v. Pfizer Inc., 361 F.3d 1016, 1017 (7th Cir.2004); Cassens v. Cassens, 430 F.Supp.2d 830, 832-33 (S.D.Ill.2006); Littleton v. Shelter Ins. Co., No. 99-912-GPM, 2000 WL 356408, at * 1 (S.D.Ill. Mar.9, 2000). The party seeking removal has the burden of establishing federal jurisdiction. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). “Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum.” Id. Put another way, there is a strong presumption in favor of remand. See Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976). See also Littleton, 2000 WL 356408, at * 1 (“The removal statute, 28 U.S.C. § 1441, is construed narrowly, and doubts concerning removal are resolved in favor of remand.”). Cf. McNichols v. Johnson & Johnson, No. CIV. 06-160-GPM, 2006 WL 3360542, at * 1 (S.D.Ill. Apr.19, 2006) (quoting Market St. Assocs. Ltd. P’ship v. Frey, 941 F.2d 588, 590 (7th Cir.1991)) (“Because a federal court’s jurisdiction is limited, it has a ‘nondelegable duty to police the limits of federal jurisdiction with meticulous care.’ ”). B. Defects in Removal Procedure 1. Forum Defendant Rule The first ground for remand asserted by the Younts is the so-called “forum defendant” rule which holds of course" }, { "docid": "20473986", "title": "", "text": "OPINION RICHARD MILLS, District Judge. Defendants removed this case to federal court based on diversity jurisdiction. Plaintiff moves for remand, arguing that diversity jurisdiction is lacking because the State of Illinois is the real party in interest. This Court’s recent ruling in Illinois v. LiveDeal, Inc., 2009 WL 383434 (C.D.Ill. Feb.12, 2009) controls. Motion to remand is allowed. Costs and fees awarded to the State. I. Invoking Illinois’ Consumer Fraud and Deceptive Business Practices Act (“ICFDBPA”), 815 ILCS 505/1 et seq., the Attorney General for the State of Illinois brought this action against two California companies and several of their officers and directors (collectively, “Defendants”). The suit was initially filed in the Illinois Circuit Court of the Seventh Judicial Circuit, Sangamon County, but was removed to federal court on diversity grounds. The Complaint alleges that the Defendants offered and performed debt settlement and mediation services for Illinois consumers. Defendants allegedly violated the ICFDBPA by, inter alia, making false or misleading statements and failing to clearly and conspicuously provide certain information. The Attorney General seeks an injunction and civil penalties, as well as restitution and rescission for injured Illinois consumers. II. “A defendant has the right to remove a case from state to federal court when the federal court could exercise jurisdiction in the first instance.” Oshana v. Coca-Cola Co., 472 F.3d 506, 510 (7th Cir. 2006) (citing 28 U.S.C. § 1441). The removal statute is narrowly construed, Wirtz Corp. v. United Distillers & Vintners N. Am., Inc., 224 F.3d 708, 715-16 (7th Cir. 2000), and the burden of establishing that removal is proper rests with the proponent of federal jurisdiction, Tylka v. Gerber Prods. Co., 211 F.3d 445, 448 (7th Cir. 2000). “Any doubt regarding jurisdiction should be resolved in favor of the states.” Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993) (citing Jones v. Gen. Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976)). Defendants allege that diversity jurisdiction provides a source of original jurisdiction. Diversity jurisdiction over civil actions requires both complete diversity and a controversy exceeding $75,000. 28 U.S.C. § 1332. The parties dispute" }, { "docid": "5135399", "title": "", "text": "questions of subject matter jurisdiction, including the denial of a motion to remand, Price v. Wyeth Holdings Corp., 505 F.3d 624, 628 (7th Cir.2007), but we typically review a district court’s decision to deny joinder for an abuse of discretion, see Perrian v. O’Grady, 958 F.2d 192, 194 (7th Cir.1992). According to Schur, after the magistrate judge allowed her to join two nondiverse defendants, the district court no longer possessed diversity jurisdiction and was required to remand the case to state court. L.A. Weight Loss, however, maintains that the district judge had the authority to reconsider the magistrate judge’s order, determine that joinder was inappropriate, refuse to join the nondiverse defendants, and retain subject matter jurisdiction. Both parties are correct on certain points, but the analysis is not as simple as either party suggests. A. Diversity Jurisdiction, Removal, and Joinder of a Nondiverse Defendant Although federal diversity jurisdiction provides a neutral forum for lawsuits between parties from different states, we interpret such jurisdiction narrowly and require complete diversity of citizenship to invoke it. Poulos v. Naas Foods, Inc., 959 F.2d 69, 71 (7th Cir.1992) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806)); see also 28 U.S.C. § 1332(a). When a plaintiff files suit in state court but could have invoked the original jurisdiction of the federal courts, the defendant may remove the action to federal court. See 28 U.S.C. § 1441(a). The party seeking removal has the burden of establishing federal jurisdiction, and federal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiffs choice of forum in state court. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). L.A. Weight Loss properly re moved this action to the Southern District of Illinois based on diversity jurisdiction on May 17, 2005. Following removal, Schur sought to join as defendants two Illinois residents whose presence would destroy diversity jurisdiction. When joinder of a nondiverse party would destroy subject matter jurisdiction, 28 U.S.C. § 1447(e) applies and provides the district court two options: (1) deny joinder, or (2) permit joinder and" }, { "docid": "5135400", "title": "", "text": "Naas Foods, Inc., 959 F.2d 69, 71 (7th Cir.1992) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806)); see also 28 U.S.C. § 1332(a). When a plaintiff files suit in state court but could have invoked the original jurisdiction of the federal courts, the defendant may remove the action to federal court. See 28 U.S.C. § 1441(a). The party seeking removal has the burden of establishing federal jurisdiction, and federal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiffs choice of forum in state court. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). L.A. Weight Loss properly re moved this action to the Southern District of Illinois based on diversity jurisdiction on May 17, 2005. Following removal, Schur sought to join as defendants two Illinois residents whose presence would destroy diversity jurisdiction. When joinder of a nondiverse party would destroy subject matter jurisdiction, 28 U.S.C. § 1447(e) applies and provides the district court two options: (1) deny joinder, or (2) permit joinder and remand the action to state court. See Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482, 1486 (7th Cir.1996). These are the only options; the district court may not permit joinder of a nondiverse defendant and retain jurisdiction. See Mayes v. Rapoport, 198 F.3d 457, 462 (4th Cir.1999); see also David D. Siegel, Commentary on 1988 Revision of Section 1447, in 28 U.S.C.A. § 1447 (2009) (noting that Congress rejected an approach permitting a court to allow joinder and retain the case). A district court has discretion to permit or deny post-removal joinder of a nondiverse party, and the court should balance the equities to make the determination. Mayes, 198 F.3d at 463; see also Perez v. Arcobaleno Pasta Machs., Inc., 261 F.Supp.2d 997, 1001 (N.D.Ill.2003); In re Bridgestone/Firestone, Inc., 129 F.Supp.2d 1202, 1204 (S.D.Ind.2001). Our court has not articulated a framework for determining whether post-removal joinder of a nondiverse party is appropriate. Many other courts, however, including district courts within our circuit, have applied the following factors, which we now adopt: (1) the" }, { "docid": "18419588", "title": "", "text": "has the burden of establishing federal jurisdiction. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). “Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum.” Id. Put another way, there is a strong presumption in favor of remand. See Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976). See also Littleton, 2000 WL 356408, at * 1 (“The removal statute, 28 U.S.C. § 1441, is construed narrowly, and doubts concerning removal are resolved in favor of remand.”). Cf. McNichols v. Johnson & Johnson, No. CIV. 06-160-GPM, 2006 WL 3360542, at * 1 (S.D.Ill. Apr.19, 2006) (quoting Market St. Assocs. Ltd. P’ship v. Frey, 941 F.2d 588, 590 (7th Cir.1991)) (“Because a federal court’s jurisdiction is limited, it has a ‘nondelegable duty to police the limits of federal jurisdiction with meticulous care.’ ”). B. Defects in Removal Procedure 1. Forum Defendant Rule The first ground for remand asserted by the Younts is the so-called “forum defendant” rule which holds of course that an action may not be removed to a federal court in a state of which a properly joined and served defendant is a citizen. See 28 U.S.C. § 1441(b) (providing that a case in which the asserted basis for federal subject matter jurisdiction is diversity “shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”); LaMotte v. Roundy’s, Inc., 27 F.3d 314, 315 (7th Cir.1994) (quoting 28 U.S.C. § 1441(b)) (“[Cjases not involving federal questions are ‘removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.’ ”); Holmstrom v. Harad, No. 05 C 2714, 2005 WL 1950672, at * 1 (N.D.Ill. Aug.11, 2005) (under the forum defendant rule, a plaintiff may “keep a case in state court if any defendant is a citizen of the State in which the action is filed.”); Allstate Life Ins. Co. v. Hanson," }, { "docid": "20473987", "title": "", "text": "injunction and civil penalties, as well as restitution and rescission for injured Illinois consumers. II. “A defendant has the right to remove a case from state to federal court when the federal court could exercise jurisdiction in the first instance.” Oshana v. Coca-Cola Co., 472 F.3d 506, 510 (7th Cir. 2006) (citing 28 U.S.C. § 1441). The removal statute is narrowly construed, Wirtz Corp. v. United Distillers & Vintners N. Am., Inc., 224 F.3d 708, 715-16 (7th Cir. 2000), and the burden of establishing that removal is proper rests with the proponent of federal jurisdiction, Tylka v. Gerber Prods. Co., 211 F.3d 445, 448 (7th Cir. 2000). “Any doubt regarding jurisdiction should be resolved in favor of the states.” Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993) (citing Jones v. Gen. Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976)). Defendants allege that diversity jurisdiction provides a source of original jurisdiction. Diversity jurisdiction over civil actions requires both complete diversity and a controversy exceeding $75,000. 28 U.S.C. § 1332. The parties dispute the former requirement. As relevant here, diversity exists where parties are “citizens of different States.” 28 U.S.C. § 1332(d). In this case, the individual and corporate defendants are citizens of California. See Wise v. Wachovia Securities, LLC, 450 F.3d 265, 267 (7th Cir.2006) (“all [corporations] are citizens both of the state of incorporation and the state in which the corporation has its principal place of business”). The State of Illinois, however, is not a “citizen” for diversity purposes. Indiana Port Comm’n v. Bethlehem Steel Corp., 702 F.2d 107, 109 (7th Cir.1983) (citing Postal Tel. Cable Co. v. Alabama, 155 U.S. 482, 15 S.Ct. 192, 39 L.Ed. 231 (1894).) Thus, if Illinois is the real party in interest, diversity jurisdiction is lacking. To determine who the real party in interest is, courts look to the “essential nature and effect of the proceeding.” Nuclear Eng’g Co. v. Scott, 660 F.2d 241, 250 (7th Cir.1981). This typically involves an analysis of the relief sought and a determination of who will benefit. See Missouri, Kansas, & Texas Railway Co." }, { "docid": "22268697", "title": "", "text": "Allied, with full knowledge of the truth or reckless disregard of the truth, misrepresented to Doe that she was not an Allied employee and led her to file a doomed lawsuit based on a negligence theory. In response to a motion from defendant, the district court removed the case from state court. Because the joining of Acme destroyed diversity, the only basis for subject matter jurisdiction was the supposed existence of a federal question. This brings us around to the issue posed at the outset of this opinion: whether the protection of a previous federal judgment interpreting state law is a federal question sufficient to confer subject matter jurisdiction on a district court. In dismissing plaintiffs suit, Chief Judge Sharp asked a different and irrelevant question, which is: Does a federal court have jurisdiction generally to protect its judgments? He answered in the affirmative, and that is correct. However, the judge did not consider the precise issue in this case concerning the distinction between judgments based on diversity and those based on a federal question. After simply assuming jurisdiction, the district court proceeded to dismiss Doe’s suit against Allied as a rehash of Doe I and sent the claim against Acme back to state court. The court’s resolution of Doe II was mistaken. A federal court may remove to its jurisdiction a civil suit filed in state court so long as the district court has original jurisdiction. 28 U.S.C. § 1441. Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum. Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571, 576 (7th Cir.1982), certiorari denied, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618. Any doubt regarding jurisdiction should be resolved in favor of the states. Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976), and the burden of establishing federal jurisdiction falls on the party seeking removal. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921). One measure of the limited scope of the removal power is the well-established doctrine" } ]

[ { "docid": "22618659", "title": "", "text": "and testify freely without fear of retaliation. The witnesses in antitrust suits may be employees or even officers of potential defendants, or their customers, their competitors, their suppliers. The grand jury as a public institution serving the community might suffer if those testifying today knew that the secrecy of their testimony would be lifted tomorrow. This “indispensable secrecy of grand jury proceedings,” United States v. Johnson, supra, at 513, must not be broken except where there is a compelling necessity. There are instances when that need will outweigh the countervailing policy. But they must be shown with particularity. “(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.” No such showing was made here. The relevancy and usefulness of the testimony sought were, of course, sufficiently established. If the grand jury transcript were made available, discovery through depositions, which might involve delay and substantial costs, would be avoided. Yet these showings fall short of proof that without the transcript a defense would be greatly prejudiced or that without reference to it an injustice would be done. Modern instruments of discovery serve a useful purpose, as we noted in Hickman v. Taylor, 329 U. S. 495. They together with pretrial procedures make a trial less a game of blindman’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent. Id., at 501. Only strong public policies weigh against disclosure. They were present in" } ]

[ { "docid": "1340437", "title": "", "text": "1) To prevent the escape of those whose indictment may be contemplated; 2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; 3) to prevent subornation of perjury or tampering with the witness who may testify before [the] grand jury and later appear at the trial of those indicted by it; 4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; 5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there is no probability of guilt. United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.1954), quoted in Procter & Gamble, 356 U.S. at 681 n. 6, 78 S.Ct. at 986 n. 6; see also Douglas Oil Co., 441 U.S. at 219 n. 10, 99 S.Ct. at 1673 n. 10. In the present case the grand jury is no longer active and the trial of Borders and Judge Hastings has been completed. Thus the first three reasons are no longer of major concern. Furthermore, while Judge Hastings has an interest in avoiding disclosure of the contents of the grand jury records, his completed criminal trial removes the fear of disclosing the fact that he was under investigation, as well as the fear of unjustly standing trial. But the public interest in encouraging free and untrammeled testimony before future grand juries is still important. “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 222, 99 S.Ct. at 1674 (footnote omitted). The “reduced” interest in secrecy is further diminished in this case when the identity of the party requesting access is considered. The Supreme Court has stated: The Douglas Oil standard is a highly flexible one, adaptable to different circumstances and sensitive to the fact that the requirements of secrecy are greater in some situations than in others____" }, { "docid": "17121219", "title": "", "text": "investigation is on-going. See generally Fed.R.Crim.P. 6(e)(2) (prohibiting disclosure of matters occurring before the grand jury); see also In re the Grand Jury Empaneling, 171 F.3d at 836; In re Grand Jury, 103 F.3d at 1145. The Supreme Court has given the following reasons for protecting grand jury secrecy: (1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect [an] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt. United States v. John Doe, Inc. I, 481 U.S. 102, 109 n. 5, 107 S.Ct. 1656, 95 L.Ed.2d 94 (1987) (quotation omitted), quoted in In re Grand Jury Investigation (DiLoreto), 903 F.2d 180, 183 (3d Cir.1990); see also Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979) (describing similar reasons for the courts’ reluctance “to lift unnecessarily the veil of secrecy from the grand jury”). Moreover, the Supreme Court made clear in Dionisio, that saddling a grand jury with minitrials “would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.” 410 U.S. at 17, 93 S.Ct. 764. Given the acknowledged need for secrecy in grand jury proceedings, we reject Appellant’s argument that the “unique facts and circumstances in this case,” including the length of time the investigation has been pending and the fact that the nature of the investigation has already been made public in several contexts, required the District Court to order disclosure of the government’s ex parte affidavit." }, { "docid": "12273714", "title": "", "text": "of his release, the likelihood of a wrongful extension of his term will be lessened significantly. The foregoing reasons support our conclusion that a contemnor is entitled to disclosure of the grand jury’s commencement and termination dates. C. The Supreme Court has adopted the following statement of the reasons for grand jury secrecy: (1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witness who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect an innocent accused who is exonerated from disclosure of the fact that he has been under investigation and from the expense of standing trial where there was no probability of guilt. United States v. John Doe, Inc. I, 481 U.S. 102, 109 n. 5, 107 S.Ct. 1656, 1661 n. 5, 95 L.Ed.2d 94 (1987). See also Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 n. 10, 99 S.Ct. 1667, 1673 n. 10, 60 L.Ed.2d 156 (1979); United States v. Procter & Gamble Co., 356 U.S. 677, 681-82 n. 6, 78 S.Ct. 983, 985-86 n. 6, 2 L.Ed.2d 1077 (1958); United States v. Educational Development Network Corp., 884 F.2d 737, 741 (3d Cir.1989). Examining these policies undergirding grand jury secrecy, we conclude that none weighs against disclosure of the termination date. Under these circumstances, the right of public access, discussed above in Part IIA, is sufficient to require disclosure. Strongly corroborating this view is a survey made by counsel in this case at the request of the court, which reveals that in the vast majority of United States District Courts, the commencement and termination dates of the grand jury are matters of public record. III. While there is a paucity of judicial authority in" }, { "docid": "3396993", "title": "", "text": "are issued as a matter of course. See In re Grand Jury Proceedings, 486 F.2d 85, 90 (3d Cir.1973) (Schofield I) (grand jury subpoenas are “instrumentalities of the United States Attorney’s office”). The rationales for grand jury secrecy are: (1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect [the] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt. United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.1954); see Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 n. 10, 99 S.Ct. 1667, n. 10, 60 L.Ed.2d 156 (1979); SEC v. Dresser Indus., 628 F.2d 1368, 1382 n. 36 (D.C.Cir.) (en banc), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980). Once evidence is presented to the grand jury, the secrecy requirements of Rule 6(e) attach and prevent the government from sharing that information with persons other than those listed on the Notice of Disclosure. In this case the USAO did not present any evidence to the grand jury until January 13,1988. Therefore, the secrecy requirements of Rule 6(e) did not attach until that time, and the USAO was free to share information uncovered in the joint investigation with the DOD and the Army. What occurred here is the USAO’s disclosure of information obtained by the DOD to the grand jury, not the USAO’s disclosure of information obtained by the grand jury to the DOD. Therefore Rule 6(e), requiring grand jury secrecy, would seem to have no application. In any event, we" }, { "docid": "513857", "title": "", "text": "our Nation itself,” that proceedings before a grand jury shall generally remain secret. In re Biaggi, 478 F.2d 489, 491 (2d Cir.1973) (quoting Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240, 3 L.Ed.2d 1323 (1959)). This tradition is cpdified in Federal Rule of Criminal Procedure 6(e). See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218—19 n. 9, 99 S.CC 1667, 1672-73 n. 9, 60 L.Ed.2d 156 (1979). The rule of secrecy has been justi- fled by the important ways in which it is said to contribute to the success of grand juries and to the protection of those who appear before them. Its purposes include: “(1) [t]o prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; [and] (5) to protect [the] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.” United States v. Procter & Gamble Co., 356 U.S. 677, 681-82 n. 6, 78. S.Ct. 983, 985-86 n. 6, 2 L.Ed.2d 1077 (1958) (quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.1954)). The rule of secrecy, however, is not without exceptions. Those exceptions have developed historically alongside the secrecy tradition and, more recently, in the practice of the federal courts. They also are codified in Rule 6(e)(3). See In re Hastings, 735 F.2d 1261, 1268-69 (11th Cir.1984). By this rule, district courts, as part of their supervisory authority over the grand juries that they have empaneled, are explicitly given the discretion to determine whether, if one or more of the" }, { "docid": "1340436", "title": "", "text": "court could take into account any alternative discovery tools available by statute or regulation to the agency seeking disclosure.” United States v. Sells Engineering, Inc., — U.S. —, —, 103 S.Ct. 3133, 3149, 77 L.Ed.2d 743 (1983). This requirement is not appropriate in the present case because of the Committee’s unique investigatory mission and the necessity that, when the investigation is over, the public be assured that it was complete. Since evidence before a grand jury is not necessarily presented at trial, the Committee’s review of the entire grand jury record for relevant evidence is important to its task of leaving no stone unturned. Thus given its special responsibilities, we believe the Committee satisfied the “particularized need” standard by demonstrating a close nexus between the subject of the grand jury proceeding and the complaint under investigation. Nothing more was required on the facts of this case. B. The Secrecy Interest Against the need for disclosure stands the competing public interest in grand jury secrecy. The Supreme Court has recognized five reasons for grand jury secrecy: 1) To prevent the escape of those whose indictment may be contemplated; 2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; 3) to prevent subornation of perjury or tampering with the witness who may testify before [the] grand jury and later appear at the trial of those indicted by it; 4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; 5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there is no probability of guilt. United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.1954), quoted in Procter & Gamble, 356 U.S. at 681 n. 6, 78 S.Ct. at 986 n. 6; see also Douglas Oil Co., 441 U.S. at 219 n. 10, 99 S.Ct. at 1673 n. 10. In the present case the grand jury is no" }, { "docid": "16470707", "title": "", "text": "their friends from importuning the grand jurors; (3) to prevent subornation or perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.” This statement of the basis for grand jury secrecy was cited with approval in Douglas Oil Co., 441 U.S. at 219, n. 10, 99 S.Ct. at 1673, n. 10. . In this case the court said: “Moreover, we have not been referred to a single case authorizing disclosure of a witness’ testimony during the pendency of grand jury investigations. . . . ” (Emphasis in text.) . In re Grand Jury Subpoenas April, 1978, Etc., 581 F.2d at 1110; Application of Jordan, (S.D.W.Va. 1977) 439 F.Supp. 199, 202. . See also: U. S. v. Socony-Vacuum Oil Co., (1940) 310 U.S. 150, 234, 60 S.Ct. 811, 849, 84 L.Ed. 1129; State of Wis. v. Schaffer, (7th Cir. 1977) 565 F.2d 961, 967; U. S. Industries, Inc. v. United States District Court, (9th Cir. 1965) 345 F.2d 18, 21, cert. denied, 382 U.S. 814, 86 S.Ct. 32, 15 L.Ed.2d 62; Beatrice Foods Co. v. United States, (8th Cir. 1963) 312 F.2d 29, 38, cert. denied, 373 U.S. 904, 83 S.Ct. 1289, 10 L.Ed.2d 199. In U. S. v. Socony-Vacuum Oil Co., 310 U.S. at 234, 60 S.Ct. at 849, the court said: “. . . after the grand jury’s functions are ended, disclosure [of grand jury materials] is wholly proper where the ends of justice require it.\" In U. S. Industries v. United States District Court, 345 F.2d at 21, the court put it: “In other words, if the reasons for maintaining secrecy do not apply at all in a given situation, or apply to only an insignificant degree, the party seeking disclosure should not" }, { "docid": "58241", "title": "", "text": "disclosure petition had been granted) Clark and Martin formally moved to intervene in the action to oppose disclosure. After a hearing, on April 21, the court entered an order denying the application to intervene as untimely and because the would-be intervenors failed to show that their interests were not adequately protected by the existing parties. The court also found that intervention would “unduly prejudice” Petrol Stops. After rehearing, the court reaffirmed its denial of the intervention motion and noted its suspicion that Douglas was attempting to relitigate the issues by sponsoring closely allied interests. (1) To prevent the escape of those, whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial when there was no probability of guilt. II. Appellants Douglas and Conoco contend that the Arizona district court abused its discretion by ordering disclosure of the testimony of their employees. They argue that the grand jury testimony is not relevant to the civil action, that no particularized or compelling need for the disclosure has been shown, and that it was error to grant Petrol Stops full access to all the requested materials rather than limiting access to “discrete portions” for which a “particularized need” had been shown. Grants of disclosure under Fed.R. Crim.P. 6(e) are reviewed for abuse of discretion. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 228, 99 S.Ct. 1667, 1677, 60 L.Ed.2d 156 (1979); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240-1241, 3 L.Ed.2d 1323 (1959). To decide whether the" }, { "docid": "17977855", "title": "", "text": "for centuries, and the rule of grand jury secrecy “is an integral part of our criminal justice system.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 n. 9, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). Although the justification for grand jury secrecy has evolved over time, the interests served by the rule are well established: (1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with 'respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt. Id. at 219 n. 10, 99 S.Ct. 1667 (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 681-82 n. 6, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958)). Rule 6(e) codifies the requirement that grand jury activities generally remain secret: “[A]n attorney for the government ... shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules____ A knowing violation of Rule 6 may be punished as a contempt of court.” Fed.R.Crim.P. 6(e)(2). The Supreme Court admonishes: “In the absence of a clear indication in a statute or Rule, we must always be reluctant to conclude that a breach of this secrecy has been authorized.” Sells Engineering, 463 U.S. 418, 425, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983). The Rule recognizes limited exceptions to grand jury secrecy, including an exception for disclosures made to state or federal government personnel: Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may" }, { "docid": "6131864", "title": "", "text": "* * *. (c) The right to be accompanied, represented and advised by counsel shall mean the right of a person testifying to have an attorney present with him during any formal investigative proceeding and to have this attorney (1) advise such person before, during and after the conclusion of such examination, (2) question such person briefly at the conclusion of the examination to clarify any of the answers such person has given, and (3) make summary notes during such examination solely for the use of such person. (d) Unless otherwise ordered by the Commission, in any public formal investigative proceeding, if the record shall contain implications of wrongdoing by any person, such person shall have the right to appear on the record; and in addition to the rights afforded other witnesses hereby, he shall have a reasonable opportunity of cross-examination and production of rebuttal testimony or documentary evidence. * * * . Supplemental brief of appellant Dresser Industries, Inc. at 13-17. . The rationales for grand jury secrecy are well established: “(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witness who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, . and from the expense of standing trial where there was no probability of guilt.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 n.10, 99 S.Ct. 1667, 1673 n.10, 60 L.Ed. 156 (1979) (brackets in original) (quoting United States v. Rose, 215 F.2d 617, 628-629 (3d Cir. 1954), approved in United States v. Proctor & Gamble Co., 356 U.S. 677, 681 n.6, 78 S.Ct. 983, 986 n.6, 2" }, { "docid": "6118688", "title": "", "text": "policy that maintains the secrecy of ... grand jury proceedings .... ” United States v. Procter & Gamble, 356 U.S. 677, 681, 78 S.Ct. 983, 985, 2 L.Ed.2d 1077 (1958) (footnote omitted). Rule 6 of the Federal Rules of Criminal Procedure provides for secrecy in grand jury proceedings. The rule codifies the long-standing tradition of the secrecy of grand jury proceedings. “The Supreme Court has recognized the following reasons for grand jury secrecy: to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; [and] to protect [the] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial, where there was no probability of guilt. Douglas Oil Co., 441 U.S. at 219 n. 10, 99 5. Ct. at 1673 n. 10; Procter & Gamble, 356 U.S. at 681-82 n. 6, 78 S.Ct. at 986 n. 6, quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.1954). Moreover, ‘the grand jury as a public institution serving the community might suffer if those testifying today knew that the secrecy of their testimony would be lifted tomorrow.’ Procter & Gamble, 356 U.S. at 682, 78 S.Ct. at 986.” Matter of Grand Jury Proceedings, Miller Brewing Co., 687 F.2d 1079, 1090 n. 14 (7th Cir.1982). In United States v. Sells Engineering, Inc., — U.S. —, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983), the Supreme Court reiterated the rationale for their traditional recognition of secrecy of grand jury proceedings. “[T]he proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if pre-indictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appear before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would" }, { "docid": "8111939", "title": "", "text": "that were subpoenaed by the first grand jury. That grand jury never saw the actual documents and did not hear testimony concerning defendants’ activities at the pharmacies. The second grand jury heard testimony from several witnesses but was not presented with any records and did not consider an indictment. The third and indicting grand jury heard the testimony of several witnesses but was not shown the actual prescriptions. Information concerning them was presented through the testimony of Officer West. It is undisputed that the government never prepared a Rule 6(e) order in connection with the transfer of the subpoenaed documents from the first grand jury to the second and third grand juries. Moreover, no grand jury was presented with the actual prescriptions and only the indicting grand jury heard specific testimony concerning these documents. The Supreme Court has often noted that secrecy of grand jury proceedings is necessary if that body is to fulfill its proper functions, see, e. g., United States v. Proctor & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1959), and Rule 6(e) was adopted to implement this policy of secrecy. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19 n. 9, 99 S.Ct. 1667, 1672-73 n. 9, 60 L.Ed.2d 156 (1978). The interests Rule 6(e) was designed to protect are as follows: “(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witness who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.” 441 U.S. at 219, n. 10, 99" }, { "docid": "17977854", "title": "", "text": "Magistrate Court’s Ruling on Disclosures On the motion for discovery, the Magistrate Court correctly recognized that the disclosure of the grand jury materials by the government “raises important questions,” and found the question of whether an actual Rule 6(e) violation occurred to be a close call. Most importantly, she noted, the Pimentals concede that the US AO secured an order from the District Court expressly granting the government leave to disclose materials to the IFB. The Magistrate Court found “[i]t is not this Court’s place, nor is it within this Court’s authority, to second-guess the district court’s decision granting disclosure.” Beyond that, the Magistrate Court noted that “the defendants have not provided the court with sufficient information to do so despite having possession of the order permitting the disclosure, and the grand jury transcripts and other ‘open file’ discovery already provided to them by the government.” Accordingly, Judge Alexander denied the Pimentals’ request. 3. The Rule of Grand Jurg Secrecy We begin with bedrock criminal procedure. Grand jury proceedings have been closed to the public for centuries, and the rule of grand jury secrecy “is an integral part of our criminal justice system.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 n. 9, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). Although the justification for grand jury secrecy has evolved over time, the interests served by the rule are well established: (1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with 'respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was" }, { "docid": "6131865", "title": "", "text": "the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witness who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, . and from the expense of standing trial where there was no probability of guilt.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 n.10, 99 S.Ct. 1667, 1673 n.10, 60 L.Ed. 156 (1979) (brackets in original) (quoting United States v. Rose, 215 F.2d 617, 628-629 (3d Cir. 1954), approved in United States v. Proctor & Gamble Co., 356 U.S. 677, 681 n.6, 78 S.Ct. 983, 986 n.6, 2 L.Ed.2d 1077 (1958)). See also Note, Administrative Agency Access to Grand Jury Materials, 75 Colum.L.Rev. 162, 166 (1975) (suggesting a further rationale: “to prevent the grand jury from being diverted from its primary concern — the investigation of criminal activity”). None of these rationales has any application to an independent agency subpoena of corporate documents. No witnesses or targets will be frightened from testifying fully, no grand jurors will be threatened or suborned, no target will be embarrassed— any more than it might be embarrassed by any other SEC subpoena. Since the fact that Dresser is the target of a grand jury investigation is already public knowledge — as witness this case — there is no danger of exposing the identity of an innocent grand jury target. . Accord, United States v. Stanford, 589 F.2d 285, 290-291 (7th Cir. 1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244 (1979); In re Search Warrant for Second Floor Bedroom, 489 F.Supp. 207 (D.R.I.1980); In re Grand Jury Investigation of Ven-Fuel, 441 F.Supp. 1299, 1302-1303" }, { "docid": "2546379", "title": "", "text": "the traditional values associated with grand jury confidentiality is significantly outweighed by the need of the Special Committee to examine the grand jury material and expeditiously execute its Congressional duty, thereby furthering the broad purposes of the Act. The traditional policies advanced for preserving the secrecy of grand jury material have been “correctly summarized” as (1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt. Douglas Oil, supra 441 U.S. at 219 n. 10, 99 S.Ct. at 1673 n. 10 (quoting United States v. Rose, 215 F.2d 617, 628-29 (3rd Cir.1954)). The first three reasons for secrecy are no longer applicable where, as here, the grand jury has concluded its investigation and has been discharged. United States v. Moten, 582 F.2d 654, 663 (2nd Cir.1978); In re Disclosure of Testimony Before the Grand Jury-(Troia), 580 F.2d 281, 287 (8th Cir.1978); Illinois v. Sarbaugh, 552 F.2d 768, 775 (7th Cir.), cert. denied, 434 U.S. 889, 98 S.Ct. 262, 54 L.Ed.2d 174 (1977); In re Report and Recommendation of June 5, 1972 Grand Jury, supra at 1229; see also, United States v. Socony-Vacuum, supra 310 U.S. at 234, 60 S.Ct. at 849 (“[A]fter the grand jury’s functions are ended, disclosure is wholly proper where the ends of justice require it.”). There has been no showing that allowing the Special Committee access will impede an ongoing investigation, or otherwise affect any civil or criminal proceeding. The rationale of the fourth and fifth" }, { "docid": "16470706", "title": "", "text": "Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156; Dennis v. United States, (1966) 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973; United States v. Procter & Gamble Co., (1958) 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077. Dennis was a criminal case in which the defendant sought disclosure. The court in that case, however, elaborated on the holding in Procter & Gamble and its conclusions were discussed in Douglas Oil. . 441 U.S. at 223, 99 S.Ct. at 1675. . 441 U.S. at 221, 99 S.Ct. at 1674. . In re Special March 1974 Grand Jury, Etc., (7th Cir. 1976) 541 F.2d 166, 170, n. 3, cert. denied, 430 U.S. 929, 97 S.Ct. 1547, 51 L.Ed.2d 773. . The reasons for grand jury secrecy were summarized in United States v. Rose, (3d Cir. 1954) 215 F.2d 617, 628-29: “(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation or perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.” This statement of the basis for grand jury secrecy was cited with approval in Douglas Oil Co., 441 U.S. at 219, n. 10, 99 S.Ct. at 1673, n. 10. . In this case the court said: “Moreover, we have not been referred to a single case authorizing disclosure of a witness’ testimony during the pendency of grand jury investigations. . . . ” (Emphasis in text.) . In re Grand Jury Subpoenas April, 1978, Etc., 581 F.2d at 1110; Application of Jordan, (S.D.W.Va. 1977) 439 F.Supp. 199, 202." }, { "docid": "8757869", "title": "", "text": "matters affecting a grand jury proceeding to be closed to the extent necessary to prevent disclosure of matters occurring before a grand jury.” Rule 6(e)(6) states “[rjeeords, orders and subpoenas relating to grand jury proceedings shall be kept under seal to the extent and for such time as is necessary to prevent disclosure of matters occurring before a grand jury.” We begin by emphasizing that “ ‘the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings.’” United States v. Haller, 837 F.2d 84, 87-88 (2d Cir.1988) (quoting Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979)). We have repeatedly explicated the rationale for this policy: (1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt. United States v. Moten, 582 F.2d 654, 662 (2d Cir.1978) (quoting United States v. Amazon Industrial Chemical Gorp., 55 F.2d 254, 261 (D.Md.1931) (“[i]t is obvious that the basis of all but the last of these reasons for secrecy is protection of the grand jury itself ... rather than of those brought before the grand jury.”) and citing, inter alia, United States v. Procter & Gamble Co., 356 U.S. 677, 681-82 n. 6, 78 S.Ct. 983, 986 n. 6, 2 L.Ed.2d 1077 (1958)); see also United States v. Sells Eng’g Inc., 463 U.S. 418, 424, 103 S.Ct. 3133, 3138, 77 L.Ed.2d 743 (1983); Douglas Oil," }, { "docid": "8111940", "title": "", "text": "1077 (1959), and Rule 6(e) was adopted to implement this policy of secrecy. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19 n. 9, 99 S.Ct. 1667, 1672-73 n. 9, 60 L.Ed.2d 156 (1978). The interests Rule 6(e) was designed to protect are as follows: “(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witness who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.” 441 U.S. at 219, n. 10, 99 S.Ct. at 1673, n. 10. The indicting grand jury’s use of the Possinger prescriptions subpoenaed by the first grand jury, through the testimony of Officer West, does not pose a serious threat to any of these interests. Moreover, no evidence has been produced suggesting that the government’s failure to obtain a Rule 6(e) order constituted a flagrant abuse of the grand jury process. Although the court does not agree with the government’s contention that the instant transfer was not a “disclosure” within the meaning of Rule 6(e), this sort of violation does not per se invalidate an indictment. See United States v. Malatesta, 583 F.2d 748, 752-54 (5th Cir. 1978); United States v. E. H. Koester Bakery Co., 334 F.Supp. 377, 381-82 (D.Md.1971). See also In Re December 1974 Term Grand Jury Investigation, 449 F.Supp. 743, 744 — 49 (D.Md.1978) (discussion of 1977 amendments). The evils associated with presenting selected portions of transcripts of testimony are not present in this case, In Re Grand Jury Investigation of Banana Industry, 214 F.Supp. 856, 859-60 (D.Md.1963), and" }, { "docid": "15855460", "title": "", "text": "assume arguendo its authenticity for the purpose of their application for a preliminary injunction. . The reasons for secrecy have been stated as follows: (1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect an innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt. United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.1954), quoted with approval in United States v. Proctor & Gamble, 356 U.S. 677, 681 n. 6, 78 S.Ct. 983, 986 n. 6, 2 L.Ed.2d 1077 (1958). . The Court notes that even if the policy reasons for secrecy, which are set forth in footnote 15, were applicable, the first three and the fifth reasons have no relevance here because the grand jury has completed its investigation, has returned its indictments, has been dismissed, and the indicted defendants have entered pleas of guilty and nolo contendere and they have been sentenced. With respect to the fourth reason, the Court observes that courts have ordered disclosure of grand jury materials to plaintiffs without impairing the willingness of witnesses to testify. See Petrol Stops Northwest v. Continental Oil Co., 647 F.2d 1005 (9th Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 672, 70 L.Ed.2d 639 (1981); Petrol Stops Northwest v. United States, 571 F.2d 1127 (9th Cir.1978), rev'd on offer grounds 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); Illinois v. Sarbaugh, 552 F.2d 768 (7th Cir.), cert. denied, 434 U.S. 889, 98 S.Ct. 262, 54 L.Ed.2d 174 (1977); U.S. Industries, Inc. v. United States District" }, { "docid": "12273715", "title": "", "text": "United States v. John Doe, Inc. I, 481 U.S. 102, 109 n. 5, 107 S.Ct. 1656, 1661 n. 5, 95 L.Ed.2d 94 (1987). See also Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 n. 10, 99 S.Ct. 1667, 1673 n. 10, 60 L.Ed.2d 156 (1979); United States v. Procter & Gamble Co., 356 U.S. 677, 681-82 n. 6, 78 S.Ct. 983, 985-86 n. 6, 2 L.Ed.2d 1077 (1958); United States v. Educational Development Network Corp., 884 F.2d 737, 741 (3d Cir.1989). Examining these policies undergirding grand jury secrecy, we conclude that none weighs against disclosure of the termination date. Under these circumstances, the right of public access, discussed above in Part IIA, is sufficient to require disclosure. Strongly corroborating this view is a survey made by counsel in this case at the request of the court, which reveals that in the vast majority of United States District Courts, the commencement and termination dates of the grand jury are matters of public record. III. While there is a paucity of judicial authority in this area, the one case we have found, In re Special Grand Jury (for Anchorage, Alaska), 674 F.2d 778 (9th Cir. 1982), supports our result. In that case, suspects of the grand jury investigation sought disclosure of ministerial grand jury records. Observing that the whole grand jury secrecy doctrine is not encapsulated within the four corners of Rule 6(e), and that the key question is whether the proposed order would violate the secrecy doctrine even though it did not violate Rule 6(e), the court held that, absent specific and substantive reasons, members of the public were entitled to access to ministerial records in the files of the district court having jurisdiction over the grand jury. See Id. at 780-81. Accord, S. Beale & W. Bryson, 2 Grand Jury Law and Practice § 7.06, at 30 n. 2 (1986) (ministerial grand jury records, such as records reflecting empaneling and extension of grand jury, are not within reach of Rule 6(e) because they reveal nothing of substance about the grand jury’s investigation). As we have explained above," } ]

[ { "docid": "15973919", "title": "", "text": "injury, or damage.” 217 Neb. at 61, 349 N.W.2d at 623. Under any theory, the Court reasoned, Ms. Givens must have known of the “injury” in 1973, because that is when fever, cramping, and bleeding occurred, leading to the removal of the Daikon Shield and a septic abortion. Plaintiff had not claimed that Robins concealed from her the fact of injury. Therefore, even if she could show concealment of evidence demonstrating the dangerousness of the Daikon Shield, and even if Nebraska law recognized concealment as legally effective to suspend the running of the period of limitations, the Court reasoned, this complaint would still be barred on its face by the passage of four years from the date of injury. This appeal followed. II. We first address the question whether the District Court abused its discretion in dismissing the plaintiff’s action for failure to comply with the discovery deadline. We believe this sanction is excessive when compared with counsel’s transgression. Dismissal with prejudice is an extreme sanction and should be used only in cases of willful disobedience of a court order or continued or persistent failure to prosecute a complaint. Lorin Corp. v. Goto & Co., 700 F.2d 1202, 1207-08 (8th Cir.1983). Certainly the district courts are more familiar with proceedings before them and with the conduct of counsel than we are, and we should give them a large measure of discretion in deciding what sanctions are appropriate for misconduct. But the punishment should fit the crime, and not every instance of failure to comply with an order of court, however inexcusable, justifies total extinction of a client’s cause of action. See Farmers Plant Food, Inc. v. Fisher, 746 F.2d 451 (8th Cir.1984) (plaintiff’s counsel’s failure to notify the clerk of the district court of the name, address, and telephone number of opposing counsel does not justify dismissal with prejudice, at least where the clerk already had most of this information in his file). Here, no good reason has been shown for the failure to complete discovery on time. But the normal sanction for such a failure is simply to disallow" } ]

[ { "docid": "23548041", "title": "", "text": "failure to satisfy a heightened pleading requirement was an error of law. However, we affirm the district court’s judgment based on its alternative ruling that Doe failed to comply with the district court’s reasonable orders to delineate Defendants and identify their respective acts or omissions. We note with particular interest that the district court, did not apply the harsh medicine of dismissal with prejudice to Doe’s initial complaint, but to her fourth. The district court resorted to dismissal with prejudice only after repeated orders to delineate Defendants and identify their respective acts or omissions. Indeed, eighteen months into the litigation, and despite direct and specific instructions to the contrary from the district court, Doe continued to aver generally that the “Defendants” had violated John’s constitutional rights. The district court concluded that Doe had failed to comply with its orders to delineate the defendants and exercised its discretion under Rule 41(b) and dismissed her Third Amended Complaint with prejudice. We review dismissal of a complaint under Rule 41(b) for failure to comply with the district court’s orders for abuse of discretion. Rodgers v. Curators of Univ. of Mo., 135 F.3d 1216, 1219 (8th Cir.1998). In determining whether the district court abused its discretion, we use “a balancing test that focuses foremost upon ‘the degree of egregious conduct which prompted the order of dismissal and to a lesser extent upon the adverse impact of such conduct upon both the defendant and the administration of justice in the district court.’ ” Id. (quoting Omaha Indian Tribe v. Tract I-Blackbird Bend Area, 933 F.2d 1462, 1468 (8th Cir.1991)). The “sanction imposed by the district court must be proportionate to the litigant’s transgression” and dismissal with prejudice should only be imposed in cases of “wilful disobedience of a court order or persistent failure to prosecute a complaint.” Id. (internal quotations and citations omitted). The district court need not find that the party acted in bad faith, but only that she acted intentionally as opposed to accidentally or involuntarily. Id. At the time Doe’s Third Amended Complaint was dismissed, litigation had been pending for approximately eighteen" }, { "docid": "9832592", "title": "", "text": "that failure to comply could result in dismissal. On July 27, 2004, Holly informed the court that he had been moved from the treatment center to prison and did not have his legal materials with him. About six weeks later, because Holly had not submitted any extra copies of his complaint, the district court dismissed the action without prejudice under Federal Rule of Civil Procedure 41(b). A district court may sua sponte dismiss an action under Rule 41(b) for the plaintiffs deliberate failure to comply with a court order. See Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1259-60 (8th Cir.1997); Brown v. Frey, 806 F.2d 801, 803 (8th Cir.1986). We conclude that the district court abused its discretion in dismissing this action, see Rodgers v. Curators of Univ. of Mo., 135 F.3d 1216, 1219 (8th Cir.1998) (standard of review), because the record does not show that Holly deliberately failed to comply with the June 28 order to submit extra copies of his complaint. Holly may have effectively responded to the order in his July 27 filing by informing the court that he no longer had his legal materials. Moreover, it is not clear whether Holly even retained a copy of his complaint (or his attempted amended complaint) after he filed it, be cause after dismissal, he requested from the district court a copy of his complaint so that he could amend it as directed. Finally, Holly was in state custody and was indigent: the record reflects that he had only $2.87 in his state account at the time he was granted IFP status. Thus it is likely that he did not have the means to make additional copies of his complaint. In these circumstances, we conclude that dismissing Holly’s case — even without prejudice — for failure to provide copies of his complaint was unduly harsh and was contrary to the spirit of the IFP statute under which Holly was proceeding, because the district court should not require a person who has been granted IFP status to prepare copies of the complaint for service. See 28 U.S.C." }, { "docid": "14901477", "title": "", "text": "PER CURIAM. Garland Farnsworth and John Johnson appeal pro se from the order of the district court sua sponte dismissing with prejudice their civil rights action for failure to comply with the district court’s orders to cooperate with appellees in preparing a discovery schedule. For reversal, appellants argue (1) the district court abused its discretion in dismissing their action with prejudice; (2) the district court erred in mooting appellants’ motion for a protective order and awarding attorneys’ fees to appel-lees for appellants’ failure to attend scheduled depositions; and (3) the district court’s bias against appellants denied them due process. We affirm. Pro se litigants are not excused from complying with court orders or substantive and procedural law. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.1984) (per curiam). A district court’s dismissal as a sanction under Federal Rule of Civil Procedure 37 for failure to comply with a discovery order is reviewed under an abuse of discretion standard. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976) (per curiam); Hazen v. Pasley, 768 F.2d 226, 229 (8th Cir.1985). After carefully reviewing the record on appeal, we note that the district court gave appellants meaningful notice of what was expected of them during the course of discovery, initially imposed less stringent sanctions when they failed to cooperate, and warned them that their failure to comply with subsequent court orders would result in dismissal of their action. Accordingly, we hold that dismissal was proper. See Ramsay v. Bailey, 531 F.2d 706, 709 (5th Cir.1976) (per curiam). We further hold that the district court did not abuse its discretion in awarding to appellees attorneys’ fees after appellants failed to attend their properly-noticed depositions. See Fed.R.Civ.P. 37(d); King v. Fidelity Nat. Bank, 712 F.2d 188, 191 (5th Cir.1983) (per curiam), cert. denied, 465 U.S. 1029, 104 S.Ct. 1290, 79 L.Ed.2d 692 (1984). Finally, appellants’ allegations of district court bias and prejudice are wholly unfounded. Accordingly, the district court’s judgment is affirmed. . The Honorable Scott O. Wright, United States District Judge for the" }, { "docid": "9832591", "title": "", "text": "PER CURIAM. Elliott Holly appeals the district court’s order dismissing his 42 U.S.C. § 1983 action prior to service for failure to comply with a court order. We reverse. While civilly confined in a Minnesota sex-offender treatment program, Holly filed an application to proceed in forma pauperis (IFP) and a complaint against treatment center employees for alleged civil rights violations. A magistrate judge granted Holly IFP status, and ordered the court clerk to issue summons and the United States Marshall to serve a copy of the summons and complaint upon defendants, noting that all costs of service would be advanced by the United States. Holly thereafter sought to file an amended complaint, which the magistrate judge struck on June 28, 2004, for failure to comply with a local rule. In this June 28 order, the magistrate judge afforded Holly until July 23, 2004, to file another amended complaint (if he wished to do so); ordered Holly to submit one additional copy of his complaint (original or amended) for each defendant he named; and warned Holly that failure to comply could result in dismissal. On July 27, 2004, Holly informed the court that he had been moved from the treatment center to prison and did not have his legal materials with him. About six weeks later, because Holly had not submitted any extra copies of his complaint, the district court dismissed the action without prejudice under Federal Rule of Civil Procedure 41(b). A district court may sua sponte dismiss an action under Rule 41(b) for the plaintiffs deliberate failure to comply with a court order. See Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1259-60 (8th Cir.1997); Brown v. Frey, 806 F.2d 801, 803 (8th Cir.1986). We conclude that the district court abused its discretion in dismissing this action, see Rodgers v. Curators of Univ. of Mo., 135 F.3d 1216, 1219 (8th Cir.1998) (standard of review), because the record does not show that Holly deliberately failed to comply with the June 28 order to submit extra copies of his complaint. Holly may have effectively responded to the order in" }, { "docid": "23548042", "title": "", "text": "orders for abuse of discretion. Rodgers v. Curators of Univ. of Mo., 135 F.3d 1216, 1219 (8th Cir.1998). In determining whether the district court abused its discretion, we use “a balancing test that focuses foremost upon ‘the degree of egregious conduct which prompted the order of dismissal and to a lesser extent upon the adverse impact of such conduct upon both the defendant and the administration of justice in the district court.’ ” Id. (quoting Omaha Indian Tribe v. Tract I-Blackbird Bend Area, 933 F.2d 1462, 1468 (8th Cir.1991)). The “sanction imposed by the district court must be proportionate to the litigant’s transgression” and dismissal with prejudice should only be imposed in cases of “wilful disobedience of a court order or persistent failure to prosecute a complaint.” Id. (internal quotations and citations omitted). The district court need not find that the party acted in bad faith, but only that she acted intentionally as opposed to accidentally or involuntarily. Id. At the time Doe’s Third Amended Complaint was dismissed, litigation had been pending for approximately eighteen months. The district court had recently admonished Doe for failure to comply with the discovery schedule. Doe’s failure to articulate specific factual allegations tied to specific Defendants, well into discovery, was more than a technical pleading deficiency, it denied the Defendants the protection of qualified immunity which is meant to provide both immunity from suit as well as an affirmative defense in response to a suit. Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Defendants were being subjected to depositions and discovery that a proper qualified immunity response may have avoided. Considering that non-compliance with the district court’s instructions to delineate Defendants and their actions deprived the Defendants of the opportunity to terminate the litigation prior to discovery based on qualified immunity, dismissal of the complaint was proportionate to the transgression and simply granted Defendants the remedy that Doe’s delay prevented. On these facts, we hold that it was not an abuse of discretion for the district court to dismiss Doe’s complaint under Rule 41(b) for failure to comply" }, { "docid": "22221932", "title": "", "text": "a Rule 41(b) dismissal with prejudice where the litigant’s sole transgression was failing to comply with the discovery deadline. Id. The court reasoned that dismissal with prejudice was disproportionate to this act of noncompliance; instead, the appropriate sanction would be to disallow any further discovery and move forward to trial on the evidence theretofore adduced. Id. at 263. At the time that the instant case was dismissed in June 1996, however, appellant had yet to produce fully records that appellees had requested in 1995. Further, appellant had yet to be fully deposed by appellees despite the district court’s efforts to accommodate appellant’s schedule. Thus, lesser sanctions such as forcing appellant to proceed to trial without further discovery would have prejudiced appellees, not appellant. Consequently, we hold that the district court did not abuse its discretion in concluding that lesser sanctions would be ineffective and unjustified or in granting dismissal with prejudice. See First General, 958 F.2d at 206 (no harm in failing to consider lesser sanctions before dismissal where lesser sanctions would have prejudiced defendant); Rogers v. Kroger Company, 669 F.2d 317 (5th Cir.1982) (“A clear record of delay coupled with tried or futile lesser sanctions will justify a Rule 41(b) dismissal with prejudice.”). IV. Conclusion In light of the foregoing, we hold that the district court did not abuse its discretion in dismissing appellant’s action with prejudice on the ground that appellant’s conduct constituted a wilful disregard of court orders. See First General, 958 F.2d at 206 (“Although dismissal with prejudice is a severe sanction, the court may impose such a sanction where the plaintiff has engaged in a pattern of intentional delay.”); Burgs v. Sis-sel, 745 F.2d 526, 528 (8th Cir.1984) (per curiam) (“Although a dismissal with prejudice is a drastic remedy, a pattern of intentional delay by the plaintiff is sufficient to warrant such action by the trial court.”). Accordingly, we affirm the judgment of the district court. . The Honorable Scott O. Wright, United States Senior District Judge for the Western District of Missouri. . Appellant does not appeal the district court’s award of attorneys’ fees." }, { "docid": "20210978", "title": "", "text": "comply with the Federal Rules of Civil Procedure or a court order. Id. Despite the breadth of the language of the rule, see Hunt v. City of Minneapolis, Minn., 203 F.3d 524, 527 (8th Cir.2000), we have held that a Rule 41(b) dismissal with prejudice “is a drastic and extremely harsh sanction, and is proper only when there has been a clear record of delay or contumacious conduct by the plaintiff,” Skelton, 187 F.3d at 908 (internal quotation marks and citations omitted). And we have admonished that “[e]ven where the facts might support dismissal with prejudice, this ultimate sanction should only be used when lesser sanctions prove futile.” See Hunt, 203 F.3d at 527 (internal quotation marks and alterations omitted). The circumstances of this case are quite different from those in our relevant precedents where we have used the aforementioned principles to review Rule 41(b) dismissals with prejudice. See, e.g., Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 722-23 (8th Cir.2010); Smith, 526 F.3d at 403-05; Hunt, 203 F.3d at 527-29; Rodgers v. Curators of Univ. of Mo., 135 F.3d 1216, 1218-21 (8th Cir.1998). In those cases, there was an ongoing pattern of delay, a persistent failure to prosecute, or a disobedience of court orders on the part of the plaintiff, and, even then, we reversed in Smith, 526 F.3d at 405, because the record lacked evidence that the plaintiffs pattern of delay was intentional and “far more egregious and willful conduct” was required to warrant such an extreme sanction. Here, Mr. DiMercurio and his attorney faithfully prosecuted the case and obeyed court orders and the rules until the attorney appeared in court on the day of trial and stated, prospectively, that Mr. DiMercurio was unable to prosecute his case. While a “plaintiff need not have acted in bad faith” to warrant a Rule 41(b) dismissal with prejudice, see Arnold, 627 F.3d at 722, we do look at the plaintiffs state of mind and the attendant circumstances when reviewing a dismissal for abuse of discretion, see Smith, 526 F.3d at 405-06. The circumstances in this case stem from the" }, { "docid": "22221931", "title": "", "text": "that appellant’s injuries contributed to his acts of noncompliance so as to render them involuntary or accidental. Absent such proof, we do not find that the district court abused its discretion in dismissing the appellant’s action with prejudice pursuant to Rule 41(b). In the alternative, appellant argues that the district court abused its discretion in dismissing his claims without first imposing lesser sanctions or explaining why lesser sanctions would have been ineffective. This court has held that “[t]he ultimate sanction of dismissal with prejudice should only be used when lesser sanctions prove futile.” Herring v. Whitehall, 804 F.2d 464, 468 (8th Cir. 1986); cf. Givens, 751 F.2d at 263-64 (reversing dismissal with prejudice where lesser sanctions were available). In the instant case, the district court, relying on First General, supra, 958 F.2d at 206, concluded that any lesser sanction would be ineffective. Order at 7. Indeed, unlike Givens, upon which appellant relies, any lesser sanction would have involved further delay or forced appellees to try their case without completing discovery. In Givens, this court reversed a Rule 41(b) dismissal with prejudice where the litigant’s sole transgression was failing to comply with the discovery deadline. Id. The court reasoned that dismissal with prejudice was disproportionate to this act of noncompliance; instead, the appropriate sanction would be to disallow any further discovery and move forward to trial on the evidence theretofore adduced. Id. at 263. At the time that the instant case was dismissed in June 1996, however, appellant had yet to produce fully records that appellees had requested in 1995. Further, appellant had yet to be fully deposed by appellees despite the district court’s efforts to accommodate appellant’s schedule. Thus, lesser sanctions such as forcing appellant to proceed to trial without further discovery would have prejudiced appellees, not appellant. Consequently, we hold that the district court did not abuse its discretion in concluding that lesser sanctions would be ineffective and unjustified or in granting dismissal with prejudice. See First General, 958 F.2d at 206 (no harm in failing to consider lesser sanctions before dismissal where lesser sanctions would have prejudiced defendant);" }, { "docid": "23548044", "title": "", "text": "with the district court’s reasonable orders. IV. Denial of Leave to Amend Complaint. Doe’s final argument that the district abused its discretion by denying leave to amend a fourth time and file a fifth complaint fares no better. We review the district court’s denial of leave to amend a complaint for abuse of discretion. Becker v. Univ. of Neb. at Omaha, 191 F.3d 904, 908 (8th Cir.1999). The district court’s determination that a party is guilty of delay is a finding of fact subject to review for clear error. Rodgers, 135 F.3d at 1219. Rule 15(a) provides that leave to amend a pleading “shall be freely given when justice so requires.” However, there is no absolute right to amend and a finding of “undue delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or futility of the amendment” may be grounds to deny a motion to amend. Becker, 191 F.3d at 908 (citation omitted). “Delay alone is not enough to deny a motion to amend; prejudice to the nonmovant must also be shown.” Bediako v. Stein Mart, Inc., 354 F.3d 835, 841 (8th Cir.2004) (citation omitted). Earlier, when the district court dismissed Doe’s Second Amended Complaint ivithout prejudice the district court specifically instructed Doe to delineate individual Defendants by paragraphs and to identify the specific acts or omissions of each Defendant. Doe failed to follow these instructions when she filed her Third Amended Complaint. In its Order and Memorandum, the district court .listed multiple instances when Doe had failed to comply with the discovery schedule. In denying Doe leave to amend a fourth time, the district court determined that Doe had been “guilty of undue delay.” See Memorandum and Order Dated September 23, 2004 at 6. After reviewing the record, we cannot say the district court’s factual findings regarding Doe’s delay are clearly erroneous. Furthermore, we agree that this delay directly prejudiced the Defendants’ ability to mount an effective qualified immunity defense and that granting leave to amend would have only prejudiced the Defendants further. We hold that" }, { "docid": "7182307", "title": "", "text": "facts central to their claims and their original story have not changed” an amendment is necessary because “the jurisdiction in which [plaintiffs] choose to pursue their claims has changed.” (Pis.’ Resp. Memo [Doc. 94] at 4.) However, plaintiffs’ claims are subject to dismissal on the merits, not because of a jurisdictional deficiency. Therefore, amendment of plaintiffs’ complaint would be futile and the court denies their request. Accordingly, the court grants defendants’ motion to dismiss the remaining plaintiffs’ civil rights claims. II. Non-Arbitrating Plaintiffs Defendants argue that Louder and Clark should be dismissed for failure to prosecute their claims. Rule 41(b) provides that a court may dismiss a plaintiffs claim if the plaintiff fails to prosecute or otherwise comply with a court order and, unless otherwise specified, such a dismissal operates as an adjudication on the merits. Fed.R.Civ.P. 41(b). The court may take action under Rule 41(b) as part of its inherent power to control its docket. M.S. v. Wermers, 557 F.2d 170, 175 (8th Cir.1977). However, “dismissal with prejudice is an extreme sanction and should be used only in cases of willful disobedience of a court order or persistent failure to prosecute a complaint.” See Smith v. Gold Dust Casino, 526 F.3d 402, 405 (8th Cir.2008). When a plaintiff engages in a “clear record of delay,” dismissal is appropriate. See Skelton v. Henry, 390 F.3d 614, 617-19 (8th Cir.2004) (dismissal proper when plaintiff filed no dispositive motion in three years); Rodgers v. Curators of Univ. of Mo., 135 F.3d 1216, 1221 (8th Cir.1998) (dismissal warranted when plaintiffs dilatory conduct continued over two-year period). In this case, Louder and Clark have not arbitrated their securities claims, prosecuted their civil rights claims or responded to defendants’ motion to dismiss. Moreover, the remaining plaintiffs indicate that Louder and Clark were released from prison and that they are no longer in contact. Based upon this information, the court grants defendants’ motion and dismisses Louder and Clark with prejudice. CONCLUSION Accordingly, based upon the file, record and proceedings herein, IT IS HEREBY ORDERED that: 1. Plaintiffs’ petition to vacate the arbitration award [Doc. No. 80]" }, { "docid": "22884821", "title": "", "text": "orders.” The court concluded that Smith’s “contentious refusal to adhere to the orders of the Court warrants dismissal.” Smith filed a motion for reconsideration on March 2, 2007. Smith argued that he attempted to complete discovery but had considerable difficulty retaining counsel willing to represent him. In support of his motion for reconsideration, Smith attached a letter from a South Dakota attorney noting that Smith briefly retained him to render an opinion on the merits of his suit and to assist him in complying with discovery. The letter indicated that while Smith may have failed to comply with discovery, this noncompliance was not willful. The district court denied Smith’s motion for reconsideration noting that while Smith’s noncompliance may not have been willful, Smith nevertheless knew that he had not complied with discovery and did not request assistance in complying with the discovery deadlines. This appeal followed. II. DISCUSSION A district court may, in its discretion, dismiss an action pursuant to Fed.R.Civ.P. 41(b) if “the plaintiff fails to prosecute or to comply with [the Federal Rules] or a court order.” We review the district court’s factual finding of willful or intentional failure to prosecute or comply with court orders for clear error. Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir.2000). This court reviews the district court’s decision to dismiss an action pursuant to Rule 41(b) for abuse of discre tion. Good Stewardship Christian Ctr. v. Empire Bank, 341 F.3d 794, 797 (8th Cir.2003). When determining whether the district court abused its discretion in dismissing an action, “this court employs a balancing test that focuses foremost upon the degree of egregious conduct which prompted the order of dismissal and to a lesser extent upon the adverse impact of such conduct upon both the defendant and the administration of justice in the district court,” Rodgers v. The Curators of the Univ. of Mo., 135 F.3d 1216, 1219 (8th Cir.1998) (internal quotations and citation omitted). We have repeatedly stressed that the “sanction imposed by the district court must be proportionate to the litigant’s transgression,” id. (emphasis added), and that “[dismissal with" }, { "docid": "22399172", "title": "", "text": "of his inaction. Id. at 919. In Mir, we suggested specifically that the court should have imposed a discovery and trial schedule, and that failure to comply with such a schedule without cause could be sufficient for the sanction of dismissal. Id. In this case, although no specific showing of prejudice to defendants is made, the integrity of the district court is involved. In this case, the district court did warn explicitly of the consequences of counsel’s dilatory behavior, and imposed a schedule for discovery and the filing of the pretrial order. Where counsel continues to disregard deadlines, warnings, and schedules set by the district court, we cannot find that a lack of prejudice to defendants is determinative. The record in this case reflects clearly that inordinate delay in the expeditious resolution of litigation, and prejudice to the court’s need to manage its docket were being exacerbated by counsel’s actions. On this record, therefore, we find no abuse of discretion in the district court’s dismissal with prejudice. We reject Henderson’s additional assertions of error. He claims that suits dismissed under Local Rule 42(e), require a showing of bad faith, and that the district court erred in its dismissal. Although Local Rule 42(e) does seem to require a showing of bad faith, no such showing is required under the court’s inherent power to dismiss for lack of prosecution under Fed. R.Civ.P. 41(b). Finally, we reject Henderson’s contention that his due process rights were violated because he was denied a hearing before the case was dismissed. Plaintiff did not in his motion nor at any time request a hearing before the district court on his motion to vacate order and motion to vacate judgment. We therefore do not reach this issue on appeal. See e.g. Frommhagen v. Klein, 456 F.2d 1391, 1395 (9th Cir.1972). The judgment of the district court is AFFIRMED. . Henderson's argument that dismissal is unjust because he is prejudiced solely because of his counsel’s errors has been rejected by the Supreme Court in Link v. Wabash Railroad, 370 U.S. at 633, 82 S.Ct. at 1390. Henderson was free" }, { "docid": "20210977", "title": "", "text": "told the court that “the plaintiff is not going to go forward with this.” The court then dismissed the case with prejudice, see Fed.R.Civ.P. 41(b), and assessed costs against Mr. DiMercurio. It later denied Mr. DiMercurio’s motion to reconsider the dismissal, see Fed.R.Civ.P. 60(b), and he appeals, asserting that the court abused its discretion in dismissing his case with prejudice and assessing costs. We agree and reverse. Mr. DiMercurio contends that the district court abused its discretion by imposing the “extreme sanction” of dismissing his case with prejudice where the record showed neither “intentional delays” nor “contumacious conduct” on his part. “We review a district court’s dismissal for failure to prosecute for abuse of discretion, balancing the court’s need to advance a crowded docket against the consequences of denying a plaintiffs day in court.” Skelton v. Rapps, 187 F.3d 902, 908 (8th Cir.1999); see also Smith v. Gold Dust Casino, 526 F.3d 402, 404-05 (8th Cir.2008). According to Rule 41(b), a district court may dismiss a case if “the plaintiff fails to prosecute” or doesn’t comply with the Federal Rules of Civil Procedure or a court order. Id. Despite the breadth of the language of the rule, see Hunt v. City of Minneapolis, Minn., 203 F.3d 524, 527 (8th Cir.2000), we have held that a Rule 41(b) dismissal with prejudice “is a drastic and extremely harsh sanction, and is proper only when there has been a clear record of delay or contumacious conduct by the plaintiff,” Skelton, 187 F.3d at 908 (internal quotation marks and citations omitted). And we have admonished that “[e]ven where the facts might support dismissal with prejudice, this ultimate sanction should only be used when lesser sanctions prove futile.” See Hunt, 203 F.3d at 527 (internal quotation marks and alterations omitted). The circumstances of this case are quite different from those in our relevant precedents where we have used the aforementioned principles to review Rule 41(b) dismissals with prejudice. See, e.g., Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 722-23 (8th Cir.2010); Smith, 526 F.3d at 403-05; Hunt, 203 F.3d at 527-29; Rodgers v. Curators" }, { "docid": "22884822", "title": "", "text": "or a court order.” We review the district court’s factual finding of willful or intentional failure to prosecute or comply with court orders for clear error. Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir.2000). This court reviews the district court’s decision to dismiss an action pursuant to Rule 41(b) for abuse of discre tion. Good Stewardship Christian Ctr. v. Empire Bank, 341 F.3d 794, 797 (8th Cir.2003). When determining whether the district court abused its discretion in dismissing an action, “this court employs a balancing test that focuses foremost upon the degree of egregious conduct which prompted the order of dismissal and to a lesser extent upon the adverse impact of such conduct upon both the defendant and the administration of justice in the district court,” Rodgers v. The Curators of the Univ. of Mo., 135 F.3d 1216, 1219 (8th Cir.1998) (internal quotations and citation omitted). We have repeatedly stressed that the “sanction imposed by the district court must be proportionate to the litigant’s transgression,” id. (emphasis added), and that “[dismissal with prejudice is an extreme sanction and should be used only in cases of willful disobedience of a court order or continued or persistent failure to prosecute a complaint,” Givens v. A.H. Robins Co., 751 F.2d 261, 263 (8th Cir.1984). We conclude that the sanction of dismissal with prejudice under these circumstances was disproportionate to Smith’s transgression. The district court therefore abused its discretion in dismissing with prejudice Smith’s complaint. The record does not show that Smith intended to delay the proceedings by failing to comply with discovery. Nor, does the record support the district court’s characterization that Smith contentiously refused to comply with court orders. To justify the extreme sanction of dismissal with prejudice, this court has required far more egregious and willful conduct than presented here. See, e.g., Good Stewardship Christian Ctr., 341 F.3d at 797-98 (holding dismissal with prejudice warranted when the record showed that plaintiffs conduct which included making several ex parte statements in violation of a district court order, making numerous baseless motions for sanctions against opposing counsel, failing to properly" }, { "docid": "22465874", "title": "", "text": "think unwise — must be honored, and may be challenged on appeal in due course. ORDER ON REHEARING On May 15, 1990, we affirmed in part and reversed in part orders entered by the District Court for the Northern District of New York (Neal P. McCurn, C.J.). Familiarity with our earlier opinion is presumed. Bobal v. Rensselaer Polytechnic Institute, et al., 916 F.2d 759 (2d Cir.1990). Our reversal of Judge McCurn’s ultimate dismissal of this action as a sanction revolved around a conference held on June 4, 1986. At that conference, the district judge attempted to fashion a discovery schedule. He ordered Bobal to appear for her scheduled deposition. In response, she stated that she would not appear and then left the courtroom. Bobal candidly admitted that she violated the court order, but attempted to justify her conduct because she “conclude[d] that the order would irreparably prejudice her case.” We reviewed the dismissal pursuant to Fed.R.Civ.P. 37(d), which addresses a party’s failure to appear for her deposition. The imposition of sanctions under that rule “is within the discretion of the district court and a decision to dismiss an action for failure to comply with discovery orders will only be reversed if the decision constitutes an abuse of that discretion.” John B. Hull, Inc. v. Waterbury Petroleum Products, Inc., 845 F.2d 1172, 1176 (2d Cir.1988). From a review of the appendices filed by both parties, it appeared that Judge McCurn had not warned Bobal that a violation of his order would result in the harsh sanction of dismissal. Cf. Schenck v. Bear, Stearns & Co., 583 F.2d 58, 59 (2d Cir.1978) (reversing district court’s dismissal for failure to prosecute, noting that “there had been no ... judicial participation indicating that a dismissal might be in the offing.”). At the argument of this appeal and in response to a question from the court, counsel for appellees stated that Judge McCurn had not warned this pro se plaintiff that a dismissal might result from a violation of his order. Although appellant made use of her opportunity for rebuttal, she did not dispute appellees’" }, { "docid": "22884823", "title": "", "text": "prejudice is an extreme sanction and should be used only in cases of willful disobedience of a court order or continued or persistent failure to prosecute a complaint,” Givens v. A.H. Robins Co., 751 F.2d 261, 263 (8th Cir.1984). We conclude that the sanction of dismissal with prejudice under these circumstances was disproportionate to Smith’s transgression. The district court therefore abused its discretion in dismissing with prejudice Smith’s complaint. The record does not show that Smith intended to delay the proceedings by failing to comply with discovery. Nor, does the record support the district court’s characterization that Smith contentiously refused to comply with court orders. To justify the extreme sanction of dismissal with prejudice, this court has required far more egregious and willful conduct than presented here. See, e.g., Good Stewardship Christian Ctr., 341 F.3d at 797-98 (holding dismissal with prejudice warranted when the record showed that plaintiffs conduct which included making several ex parte statements in violation of a district court order, making numerous baseless motions for sanctions against opposing counsel, failing to properly answer requests for admissions, and obstructing discovery during depositions, was designed to delay proceedings); Hunt, 203 F.3d at 527-28 (holding dismissal with prejudice warranted when between the issuance of the pretrial order and the date trial was set to commence, the litigant “engaged in at least six distinct violations of the court’s orders or of the Federal Rules”); Rodgers, 135 F.3d at 1218 (holding dismissal with prejudice warranted when the litigant failed to appear at two court ordered depositions, disregarded the district court’s order to produce certain material documents, and violated a court order prohibiting him from firing his fourth set of counsel). In this case, Smith was simply incapable of complying with the discovery deadlines because of, among other things, a serious health problem which required surgery. Furthermore, the record shows that throughout the discovery period Smith made sincere efforts to complete discovery, inform the court of his progress, and give explanations for any delays. This is not a ease where a litigant flagrantly disregarded or ignored any advance warning from the district court" }, { "docid": "23479795", "title": "", "text": "a futile waste of judicial resources and that dismissal was the appropriate response. II. The Federal Rules of Civil Procedure permit dismissal with prejudice “[f]or failure of a plaintiff to prosecute or to comply with these rules or any order of court.” Fed.R.Civ.P. 41(b). Despite the breadth of this language, however, we have recognized that dismissal with prejudice is an extreme sanction that should be used only in cases of willful disobedience of a court order or where a litigant exhibits a pattern of intentional delay. See Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1260 (8th Cir.1997). This does not mean that the district court must find that the appellant acted in bad faith, but requires “only that he acted intentionally as opposed to accidentally or involuntarily.” Rodgers v. Univ. of Missouri, 135 F.3d 1216, 1219 (8th Cir.1998). We review for clear error the district court’s factual finding of a willful disregard of court orders or of a pattern of persistent delay. See id. Even where the facts might support dismissal with prejudice, this “ultimate sanction ... should only be used when lesser sanctions prove futile.” Id. at 1222 (citations and quotation marks omitted). “A district court should weigh its need to advance its burdened docket against the consequence of irrevocably extinguishing the litigant’s claim and consider whether a less severe sanction could remedy the effect of the litigant’s transgressions on the court and the resulting prejudice to the opposing party.” Hutchins, 116 F.3d at 1260 (citation omitted). Because district courts are “more familiar with proceedings before them and with the conduct of counsel than we are,” we give them “a large measure of discretion in deciding what sanctions are appropriate for misconduct.” Id. (citation and quotation marks omitted). Although we have encouraged district courts to warn litigants when they are “skating on the thin ice of dismissal,” such admonitions are not necessary to sustain a Rule 41(b) dismissal. Rodgers, 135 F.3d at 1221. The ultimate decision of what sanctions are appropriate is reviewed for abuse of discretion. See Hutchins, 116 F.3d at 1260. We conclude that" }, { "docid": "20954839", "title": "", "text": "1018 (7th Cir.2000). Several of our cases (two discussed in the next paragraph — plus Ball itself, the original of the “must” requirement) are explicit that a warning is not always required, as are a number of cases in other circuits. Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir.2002); Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir.2000); Rodgers v. Curators of the University of Missouri, 135 F.3d 1216, 1221 (8th Cir.1998); Ehrenhaus v. Reynolds, 965 F.2d 916, 919, 921-22 (10th Cir.1992). Ball’s use of “must” was not intended to lay down a rigid rule, as is clear from discussion elsewhere in the opinion. 2 F.3d at 756. It was intended rather as a useful guideline to district judges — a safe harbor to minimize the likelihood of appeal and reversal. Ball differs only in tone and nuance from the earlier discussion of the warning issue in Johnson v. Kamminga, 34 F.3d 466, 468-69 (7th Cir.1994), where we said that “although district courts are encouraged to warn litigants before dismissing a case for failure to prosecute, whether they in fact do so is clearly within their discretion. Lockhart v. Sullivan, 925 F.2d 214, 219 (7th Cir.1991). Leaving the decision to the district courts ensures that dilatory tactics are sanctioned appropriately. The prejudice incurred by a delay in one case may far outweigh that caused in another. Were district courts required to warn litigants before dismissing a case, we would in effect be granting each litigant one opportunity to disregard the court’s schedule without fear of penalty regardless of the harm done to other litigants. Such a rule would impermissibly burden the district courts in their efforts to manage their dockets. Using this standard, we held in Lockhart that inconsistencies in the plaintiffs excuse for not attending a discovery-related status hearing combined with the plaintiffs record of dilatory conduct supported the trial judge’s decision to dismiss the case with prejudice even though he did not provide a warning beforehand.” Granted, the facts in Johnson were more extreme than in this case, and Kruger v. Apfel, supra, 214" }, { "docid": "22884825", "title": "", "text": "that failure to comply with discovery deadlines would result in dismissal with prejudice. The district court did not give any such warning here. While the failure to give warning that a litigant is “skating on thin ice,” does not, alone, compel reversal, we certainly encourage it as it would put a litigant, especially a pro se litigant such as Smith, on notice that he risks irreversibly losing the right to bring suit. See Rodgers, 135 F.3d at 1221. The district court’s failure to give Smith any advance warning weighs against imposing the extreme sanction of dismissal with prejudice. This is especially so in light of the fact that in the eight months that passed between the district court’s April 7, 2006 order extending the discovery and motions deadlines and Gold Dust’s motion to dismiss Smith’s complaint, Gold Dust made no effort to inform the district court of Smith’s noncompliance. When determining whether or not to dismiss a case with prejudice a district court should first “consider whether any less-severe sanction could adequately remedy the effect of the delay on the court and the prejudice to the opposing party.” Mann v. Baumer, 108 F.3d 145, 147 (8th Cir.1997). The record does not show that the district court gave adequate consideration to a less-severe sanction. Indeed, Appellees requested as an alternative to dismissing the action that the district court issue an order compelling Smith to comply with discovery. By the time the district court considered Gold Dust’s motion to dismiss, Smith had found counsel willing to take his case contingent upon Smith obtaining a continuance of the trial date. In these circumstances, the extreme sanction of dismissal of the action cannot be approved. While parties who do not comply with court orders may face sanctions, we reiterate that “the punishment should fit the crime, and not every instance of failure to comply with an order of [the] court, however inexcusable, justifies total extinction of a client’s cause of action.” Givens, 751 F.2d at 263. We conclude that the district court abused its discretion in dismissing with prejudice Smith’s complaint. III. CONCLUSION We" }, { "docid": "23479794", "title": "", "text": "Hunt intended to call as an expert witness Dr. Michael G. Farnsworth, whom he had not previously designated as an expert witness pursuant to Federal Rule of Civil Procedure 26(a)(2)(B). Based on these instances of noncompliance, the district court dismissed Hunt’s ease with prejudice on February 26, 1999. The court characterized Hunt’s failure to disclose his ability to perform light administrative work as “an egregious violation of his ongoing duty to supplement discovery as provided in the Federal Rules of Civil Procedure,” and noted previous difficulties in securing Hunt’s compliance with deposition requests. Because Hunt’s prior behavior in the case had necessitated multiple orders to compel discovery and had even led to a threat to dismiss the case with prejudice unless Hunt agreed to submit to a mental examination, the court determined that his repeated violation of court orders and the Federal Rules was willful and intentional. After observing that Hunt could not offer any witnesses or exhibits because of his multiple violations of the pretrial order, the district court concluded that trial would be a futile waste of judicial resources and that dismissal was the appropriate response. II. The Federal Rules of Civil Procedure permit dismissal with prejudice “[f]or failure of a plaintiff to prosecute or to comply with these rules or any order of court.” Fed.R.Civ.P. 41(b). Despite the breadth of this language, however, we have recognized that dismissal with prejudice is an extreme sanction that should be used only in cases of willful disobedience of a court order or where a litigant exhibits a pattern of intentional delay. See Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1260 (8th Cir.1997). This does not mean that the district court must find that the appellant acted in bad faith, but requires “only that he acted intentionally as opposed to accidentally or involuntarily.” Rodgers v. Univ. of Missouri, 135 F.3d 1216, 1219 (8th Cir.1998). We review for clear error the district court’s factual finding of a willful disregard of court orders or of a pattern of persistent delay. See id. Even where the facts might support dismissal with" } ]

[ { "docid": "22573550", "title": "", "text": "binding obligation on the Company. The lower court then ruled that although the language in the plan master document was unambiguous, when viewed in light of the conflicting SPD, an ambiguity was created as to whether Bergt was eligible to participate in the retirement plan. Since the court found an ambiguity, it considered extrinsic evidence, concluding that Bergt was not eligible to participate in the retirement plan because the understanding of the parties was that an employee could not be a participant in both the retirement plan and a company-sponsored profit-sharing plan. Although the court reviewed the Committee’s decision for an abuse of discretion, it noted that it would have granted summary judgment even if it had applied a de novo review. II. Discussion A. Standard of Review We review a district court’s grant or denial of a motion for summary judgment de novo. Lang v. Long-Term, Disability Plan of Sponsor Applied Remote Tech., 125 F.3d 794, 797 (9th Cir.1997). We also determine which standard of review to apply to a committee’s decision de novo. Snow v. Standard Ins. Co., 87 F.3d 327, 331 (9th Cir.1996). In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court said that when an ERISA plan grants discretionary authority to the plan administrator to determine plan eligibility, the court will ordinarily review a committee’s decision to deny benefits for an abuse of discretion. In Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999), the Ninth Circuit held that the plan documents must grant this discretionary authority unambiguously; if the plan fails to do this, the district court must review a committee’s decision de novo. In this case, the retirement plan language unambiguously gives the Committee broad discretion to determine eligibility benefits. It grants the administrative committee the “power” and “duty” to “interpret the plan and to resolve ambiguities, inconsistencies and omissions” and to “decide on questions concerning the plan and the eligibility of any Employee .... ” See Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1207 (9th" } ]

[ { "docid": "5425677", "title": "", "text": "granted Olympic’s motion to remove the automatic reference of the matter to the bankruptcy court. . For example, the court did not consider Seattle's demand that Olympic provide liability insurance to be a safety demand that was preempted by federal law. The court also denied Olympic's request for a declaration that \"any” termination or denial of a franchise violated the Commerce Clause, and that the franchise fees sought by Seattle were arbitrary and unreasonable. Those issues were not appealed. . We review de novo a district court's grant of summary judgment. Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1226 n. 8 (9th Cir.2005). Viewing the facts in the light most favorable to the nonmoving party, we must determine whether a genuine issue of material fact exists, and whether the district court applied the law correctly. See Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir.2004). Olympic argues that, because a preliminary injunction was granted in this case, our review of that ruling is for abuse of discretion. Olympic is incorrect. The final judgment appealed is the summary judgment order. There was no interlocutory appeal of the injunction. . We review de novo a district court's decision regarding preemption. AGG Enters, v. Wash. County, 281 F.3d 1324, 1327 (9th Cir.2002). We also review de novo a district court’s interpretation of federal statutes, including the PSA. Shell Oil Co. v. City of Santa Monica, 830 F.2d 1052, 1055-56 (9th Cir.1987). . Express preemption exists where Congress enacts an explicit statutory demand that state law be displaced. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct 2031, 119 L.Ed.2d 157 (1992). Field preemption exists \"where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress left no room for supplementary state regulation.” Moldo v. Matsco, Inc. (In re Cybernetic Servs., Inc.), 252 F.3d 1039, 1045-46 (9th Cir.2001) (internal quotation marks omitted). Conflict preemption is found \"where compliance with both federal and state regulations is a physical impossibility,” Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132," }, { "docid": "12664054", "title": "", "text": "to any party in connection with the CD or its role as custodian of the CD, that it is discharged from liability, and awarding CSC its costs and attorneys’ fees. Standard of Review On appeal from a dismissal for lack of subject matter jurisdiction, we review the district court’s legal conclusions de novo, J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 112 (2d Cir.2004), and its factual findings for clear error. Luckett v. Bure, 290 F.3d 493, 496 (2d Cir.2002). Discussion We are asked in this appeal to consider whether CSC’s declaratory judgment claim failed to satisfy the “amount-in-eontrover-sy” requirement such that the district court properly dismissed the claim for lack of subject matter jurisdiction under 28 U.S.C. § 1332. The parties do not dispute that when CSC brought this action, the CD had no value. As the district court correctly noted, the Declaratory Judgment Act does not by itself confer subject matter jurisdiction on the federal courts. See 28 U.S.C. § 2201(a) (“In a case of actual controversy within its jurisdiction ... any court of the United States ... may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” (emphasis added)). Rather, there must be an independent basis of jurisdiction before a district court may issue a declaratory judgment. See Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 752 (2d Cir.1996). The asserted basis for jurisdiction in this case is 28 U.S.C. § 1332, requiring that the parties be diverse and that the amount in controversy exceed $75,000. Diversity of citizenship is not disputed here; the jurisdictional dispute relates only to the amount in controversy. “In actions seeking declaratory or injunctive relief, it is well established that the amount in controversy is measured by the value of the object of the litigation.” Hunt v. Washington State Apple Adver. Com’n, 432 U.S. 333, 347, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). We have observed that “the amount in controversy is calculated from the plaintiffs standpoint; the value" }, { "docid": "21634500", "title": "", "text": "the heart of the matter was declaratory because “[t]he crux of th[e] litigation is whether the insurance policy in question provides coverage to the plaintiffs.” Easterday v. Federated Mut. Ins. Co., 2016 WL 492481, *4 (E.D. Pa. Feb. 9, 2016). The Court then turned to Reifer to determine whether it should decline jurisdiction. As in Rarick, the Court found that although there was no pending parallel state court proceeding, it should nonetheless decline jurisdiction because of the novel nature of the state law claim and the absence of a federal interest. Id. Federated Mutual appealed. II The District Court had jurisdiction in both cases under 28 U.S.C. §§ 1441 and 1332. We have appellate jurisdiction under 28 U.S.C. § 1291. See Reifer, 751 F.3d at 133 (holding that “a remand order entered pursuant to the [Declaratory Judgment Act] is an appealable final decision”). We typically review a district court’s decision to decline jurisdiction under the Declaratory Judgment Act for abuse of discretion. Id. at 138-39. However, when a district court declines jurisdiction of non-declaratory matters, we “review[] the underlying legal questions de novo but the court’s decision to abstain for abuse of discretion.” Nat’l City Mortg. Co. v. Stephen, 647 F.3d 78, 82 (3d Cir. 2011) (citations omitted). Here, we must first decide whether the District Court applied the appropriate legal standard to ascertain its discretion to decline jurisdiction. We review that question of law de novo. III A A federal district court’s discretion to decline jurisdiction depends on whether the complaint seeks legal or declaratory relief. When an action seeks legal relief, federal courts have a “virtually unflagging obligation” to exercise jurisdiction. Colo. River, 424 U.S. at 817, 96 S.Ct. 1236. There are but a few “extraordinary and narrow exeeption[s]” to this rule. Id. at 813, 96 S.Ct. 1236. When an action seeks declaratory relief, however, federal courts may decline jurisdiction under the Declaratory Judgment Act. 28 U.S.C. § 2201(a) (“In a case of actual controversy within its jurisdiction, ... any court of the United States ... may declare the rights and other legal relations of any interested party" }, { "docid": "398321", "title": "", "text": "Washington. On August 22, 1990, the United States Attorney’s Office notified the Tribe that Pick Six was not a Class II gaming device and that operation of the devices absent a compact with the State violated the law. Tribal representatives met with the United States Attorney’s office in an unsuccessful attempt to resolve the Pick Six issue. The Tribe and the Government ultimately agreed to resolve the issue by an action under the Declaratory Judgment Act. 28 U.S.C. § 2201 et seq. The parties filed cross-motions for summary judgment. The district court declared that Pick 6 was not a Class II gaming device. I. JURISDICTION The Government has not challenged our jurisdiction to review this matter. Nevertheless, we must determine whether we have jurisdiction over this action for a declaratory judgment sua sponte. Matter of Pizza of Hawaii, Inc., 761 F.2d 1374, 1377 (9th Cir.1985). Under the Declaratory Judgment Act, a federal court may “declare the rights and other legal relations” of parties to a “case of actual controversy.” 28 U.S.C. § 2201. The purpose of the Declaratory Judgment Act is “to relieve potential defendants from the Damoclean threat of impending litigation which a harassing adversary might brandish, while initiating suit at his leisure — or never.” Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555 (9th Cir.1990) (quoting Societe de Conditionnement v. Hunter Engineering Co., 655 F.2d 938, 943 (9th Cir.1981). In Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941), the Supreme Court ruled that “the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant issuance of a declaratory judgment.” Id. at 273, 61 S.Ct. at 512. If the defendant’s actions cause the plaintiff to have a “real and reasonable apprehension that he will be subject to liability,” the plaintiff has presented a justiciable case or controversy. Hal Roach, 896 F.2d at 1555. This matter presents a justiciable controversy. In" }, { "docid": "5425676", "title": "", "text": "the Western District of Washington. On April 8, 2003, Seattle filed a motion for relief from the automatic bankruptcy stay, arguing that relief was appropriate under the “for cause” provision of 11 U.S.C. § 362(d)(1). The “cause” alleged was Olympic’s purported failure to provide the City proof of adequate insurance coverage. The bankruptcy judge denied Seattle’s motion, holding that Seattle was a governmental unit for purposes of 11 U.S.C. § 362(b)(4), and its use of police power with regard to the Seattle Lateral was not automatically stayed by Olympic's bankruptcy filing. . Olympic is owned by ARCO MidCon and Shell Pipeline Company LP. . On July 9, 2003, the Office of Pipeline Safety (\"OPS”) of the Department of Transportation (\"DOT”) notified Seattle that its position was that a hydrostatic test of the Seattle Lateral was not necessary to ensure the safe operation of the pipeline and that the pipeline met federal regulatory standards. . The City of Federal Way was also named as a defendant but was later dismissed without prejudice. . The court also granted Olympic’s motion to remove the automatic reference of the matter to the bankruptcy court. . For example, the court did not consider Seattle's demand that Olympic provide liability insurance to be a safety demand that was preempted by federal law. The court also denied Olympic's request for a declaration that \"any” termination or denial of a franchise violated the Commerce Clause, and that the franchise fees sought by Seattle were arbitrary and unreasonable. Those issues were not appealed. . We review de novo a district court's grant of summary judgment. Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1226 n. 8 (9th Cir.2005). Viewing the facts in the light most favorable to the nonmoving party, we must determine whether a genuine issue of material fact exists, and whether the district court applied the law correctly. See Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir.2004). Olympic argues that, because a preliminary injunction was granted in this case, our review of that ruling is for abuse of discretion. Olympic is" }, { "docid": "22312896", "title": "", "text": "for payment for crane services provided at the Marriott Hotel, contending that they were barred by Alaska’s three-year statute of limitations. The district court granted Columbia’s motion. Johnson then moved to remand the suit to state court for lack of diversity jurisdiction, contending that Columbia was owned in part by an Alaska citizen. The district court denied the motion. Johnson then successfully moved for summary judgment on his remaining claim for payment for the cleanup at Ship Creek. Finally, although the district court determined that Columbia was the “prevailing party,” it declined to award attorneys’ fees. Johnson appeals the partial summary judgment in favor of Columbia on the crane services at the Marriott Hotel, and the denial of his motion to remand to state court. Columbia cross-appeals the district court’s refusal to award attorneys’ fees. II. Standard of Review The existence of subject matter jurisdiction is a question of law which we review de novo. Chang v. United States, 327 F.3d 911, 922 (2003). We also review the district court’s grant of summary judgment de novo. Universal Health Servs. Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004). We review for abuse of discretion an award or denial of attorneys’ fees made pursuant to state law. Vess v. Giba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir.2003). III. Subject Matter Jurisdiction Columbia is a limited partnership in which the two partners are limited liability companies, or LLCs. Because a partnership is a citizen of all of the states of which its partners are citizens, Johnson’s motion to remand to state court for lack of diversity jurisdiction turns on the citizenship of the two LLCs. The citizenship of an LLC for purposes of diversity jurisdiction poses a question of first impression in this circuit. The federal court’s basic diversity jurisdiction extends to “all" }, { "docid": "22989294", "title": "", "text": "entering judgment in favor of the Plan. In a nearly identical case, we held that parties may stipulate to a final judgment if all the issues in the case are placed in this court on appeal. See Comsource Independent Foodservice Cos. v. Union Pacific Railroad Co., 102 F.3d 438 (9th Cir.1996). In Comsource, the defendants filed a summary judgment motion, claiming that the plaintiffs cause of action was barred by the statute of limitations. See id. Although the district court denied summary judgment, the parties stipulated to a final judgment for the purpose of facilitating an appeal. See id. As in this case, all the issues in Comsource were decided by the district court and placed in this court for de novo review. The stipulation turned a nonfinal order — the denial of a summary judgment motion' — into a final judgment by virtue of an agreement between the parties and subsequent approval by the district court through an entry of judgment. See id. The procedure set forth in Comsource directly controls the jurisdictional question in this case. Thus, under the controlling authority of Comsource, we have jurisdiction over this matter pursuant to 28 U.S.C. § 1291. The scope of our review is limited to the district court’s denial of summary judgment. See Comsource, 102 F.3d at 442. III. We review a district court’s denial of summary judgment de novo. See Moran v. Washington, 147 F.3d 839, 844 (9th Cir.1998). On review of summary judgment, we must determine whether the evidence, when viewed in a light most favorable to the nonmoving party, raises any genuine issues of material fact and whether the district court correctly applied the substantive law. See Berry v. Valence Tech., Inc., 175 F.3d 699, 703 (9th Cir.1999). We also review de novo the district court’s choice and application of the standard of review applicable to decisions of plan administrators in the ERISA context. Lang v. Long-Term Disability Plan of Sponsor Applied Remote Tech., Inc., 125 F.3d 794, 797 (9th Cir.1997). Due to the unusual posture in which this case has come before us, we make special" }, { "docid": "383620", "title": "", "text": "counterclaims on the ground that the action did not present a case or controversy as required by Article III of the Constitution. On December 8, 2006, Janssen provided Apotex with a covenant-not-to-sue with respect to the '425 and '587 patents. After granting the covenant, Janssen requested that Apotex withdraw its counterclaims. Apotex refused. On October 11, 2007, the district court granted Janssen’s motion to dismiss Apotex’s counterclaims for lack of subject matter jurisdiction. The district court found “no case or controversy” regarding the '425 and '527 patents. This appeal followed. DISCUSSION Whether an “actual controversy” exists that is sufficient to sustain federal subject matter jurisdiction is a question of law this court reviews de novo. Teva Pharms. USA Inc. v. Novartis Pharms. Corp., 482 F.3d 1330, 1335-36 (Fed.Cir.2007). In the ANDA context, Congress extended federal court jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201, to ANDA Paragraph IV disputes, 21 U.S.C. § 355(j)(5)(C). Congress also directed federal courts to exercise jurisdiction over these ANDA Paragraph IV declaratory judgment actions “to the extent consistent with the Constitution,” 35 U.S.C. § 271(e)(5). The relevant text of the Declaratory Judgment Act reads: In a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. 28 U.S.C. § 2201(a). The Declaratory Judgment Act’s “actual controversy” requirement “refers to the type of ‘Cases’ and ‘Controversies’ that are justiciable under Article III.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 S.Ct. 764, 771, 166 L.Ed.2d 604 (2007). In Medlmmune, the Supreme Court stated that a justiciable declaratory judgment action exists when: the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Id. at 771 (citation omitted). The Court emphasized that the dispute must be: “definite and concrete, touching the legal relations of parties having" }, { "docid": "8295217", "title": "", "text": "19, 2006, in the United States District Court for the District of Oregon. On January 31, 2007, First Resolution filed a counterclaim seeking to collect the debt due on Avery’s account. Avery moved to dismiss the claim for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The Attorneys moved for summary judgment on Avery’s FDCPA claim that they had illegally attempted to collect a time-barred debt, and Avery made a cross-motion for summary judgment, arguing that the underlying debt at issue was time-barred as a matter of law. The district court found that the underlying debt was not time-barred and granted the Attorneys’ motion for summary judgment, denying Avery’s cross-motion for summary judgment on the same issue. The district court also declined to exercise supplemental jurisdiction over First Resolution’s counterclaim and dismissed it accordingly, but did not award Avery attorney’s fees. Avery appealed to this court. STANDARD OF REVIEW We review a district court’s decision on cross-motions for summary judgment de novo. Arakaki v. Hawaii, 314 F.3d 1091, 1094 (9th Cir.2002). Summary judgment is appropriately awarded when, viewing the evidence in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the district court has correctly applied the underlying substantive law. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004). We review the district court’s denial of attorney’s fees and costs for abuse of discretion. P.N. v. Seattle Sch. Dist., No. 1, 474 F.3d 1165, 1168 (9th Cir.2007). Elements of legal analysis and statutory interpretation underlying the district court’s decision are reviewed de novo, and factual findings are reviewed for clear error. Id. DISCUSSION A. Summary Judgment to the Attorneys Both parties agree that under the terms of the original agreement between Avery and Providian National Bank, New Hampshire law applies to this dispute. Under Oregon law, applied by the district court sitting in diversity, if a claim is based upon the law of another state, the limitations period of that state applies, as do the laws of that state governing tolling and accrual. Or." }, { "docid": "21333292", "title": "", "text": "would compensate Plaintiffs’ counsel for their superior performance and would be sufficient to induce competent Idaho attorneys to accept appointment in meritorious prisoner civil rights cases seeking declaratory and injunctive relief. In total, the court awarded $349,018.52 in attorney’s fees and costs. Pursuant to 28 U.S.C, § 1291, CCA timely appealed the district court’s orders finding the court had subject matter jurisdiction to enforce the settlement agreement, finding CCA in contempt, and awarding attorney’s fees and costs. See Stone v. City & Cnty. of San Francisco, 968 F.2d 850, 854 (9th Cir.1992) (holding that post-judgment contempt orders imposing sanctions are final for purposes of § 1291). II. Standards of Review We review de novo whether a district court has subject matter jurisdiction to enforce a settlement agreement, Kirkland v. Legion Ins. Co., 343 F.3d 1135, 1140 (9th Cir.2003), a district court’s interpretation of federal statutes, San Luis & Delta-Mendota Water Auth. v. United States, 672 F.3d 676, 699 (9th Cir.2012), and its interpretation of a settlement agreement, City of Emeryville v. Robinson, 621 F.3d 1251, 1261 (9th Cir. 2010). We review for abuse of discretion a district court’s civil contempt order, FTC v. EDebitPay, LLC, 695 F.3d 938, 943 (9th Cir.2012), and its award of attorney’s fees, Bouman v. Block, 940 F.2d 1211, 1235 (9th Cir.1991). We review the district court’s factual findings in connection with a contempt order for clear error. EDebitPay, 695 F.3d at 943. III. Discussion A. Subject Matter Jurisdiction The district court dismissed Plaintiffs’ suit with prejudice after the parties reached a settlement. CCA contends the district court did not have subject matter jurisdiction to enforce the settlement agreement because the court’s jurisdiction terminated when it dismissed the case. In other words, CCA maintains the parties’ agreement is not enforceable in federal court. We disagree. The district court had federal question jurisdiction over Plaintiffs’ suit under 28 U.S.C. § 1331; the settlement agreement was incorporated into the court’s dismissal order; and the district court therefore had ancillary jurisdiction to enforce the settlement agreement. Federal courts are courts of limited subject matter jurisdiction. A party alleging subject" }, { "docid": "22989295", "title": "", "text": "in this case. Thus, under the controlling authority of Comsource, we have jurisdiction over this matter pursuant to 28 U.S.C. § 1291. The scope of our review is limited to the district court’s denial of summary judgment. See Comsource, 102 F.3d at 442. III. We review a district court’s denial of summary judgment de novo. See Moran v. Washington, 147 F.3d 839, 844 (9th Cir.1998). On review of summary judgment, we must determine whether the evidence, when viewed in a light most favorable to the nonmoving party, raises any genuine issues of material fact and whether the district court correctly applied the substantive law. See Berry v. Valence Tech., Inc., 175 F.3d 699, 703 (9th Cir.1999). We also review de novo the district court’s choice and application of the standard of review applicable to decisions of plan administrators in the ERISA context. Lang v. Long-Term Disability Plan of Sponsor Applied Remote Tech., Inc., 125 F.3d 794, 797 (9th Cir.1997). Due to the unusual posture in which this case has come before us, we make special note to address the parties’ stipulation, which has been ratified by the district court. The parties have stipulated to the abuse of discretion standard following the district court’s ruling. This stipulation was undertaken by the parties with the apparent purpose of granting finality to the ruling of the district court on summary judgment. However, the decision of the parties to set aside issues of law does not affect the scope of our review. As an appellate court, we are not bound by stipulations as to questions of law. Estate of Sanford v. Commissioner of Internal Revenue, 308 U.S. 39, 51, 60 S.Ct. 51, 84 L.Ed. 20 (1939); Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289-290, 37 S.Ct. 287, 61 L.Ed. 722 (1917) (stating that a stipulation intended to be “treated as an agreement concerning the legal effect of admitted facts ... is obviously inoperative; since the court cannot be controlled by agreement of counsel on a subsidiary question of law”). An appellate court “aet[s] without any impropriety in refusing to accept" }, { "docid": "21388310", "title": "", "text": "summary judgment. The court held that “for purposes of applying § 406 in concurrent claims cases, ‘past-due benefits’ means the actual Title II benefits payable before offset for Title XVI benefits.” Guadamuz, 662 F.Supp. at 1067. The court found that the Secretary’s interpretation of 42 U.S.C. §§ 406 and 1320a-6 was “ ‘manifestly contrary to the statute[s]’ ” and hence was not entitled to deference. Id. The court determined that the purpose of section 406 was to encourage effective legal representation of claimants by insuring that their lawyers will receive reasonable attorney’s fees. “By artificially reducing the amount of Title II benefits from which attorneys’ fees may be withheld ... the Secretary’s approach provides a significant disincentive to attorneys who might otherwise be willing to represent Social Security claim-ants_” Id. at 1064. The court ordered the Secretary to “calculate and withhold attorneys’ fees based on pre-offset Title II benefits. In furtherance of this order the Secretary shall issue instructions to all necessary offices to implement this order within fifteen days of this order.” Id. at 1067. The Secretary timely appealed. We have jurisdiction under 28 U.S.C. § 1291. STANDARD OF REVIEW Questions of law are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The district court’s grant of permanent injunctive relief is reviewed for an application of erroneous legal principles. SEC v. Goldfield Deep Mines Co. of Nevada, 758 F.2d 459, 465 (9th Cir.1985). ANALYSIS I. Jurisdiction. Both below, and on appeal, the Secretary challenged the subject matter jurisdiction of the district court. Nowhere in its order did the district court address this issue. The plaintiffs alleged jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3), 1361, and 5 U.S.C. § 555(b). The complaint also sought declaratory relief under 28 U.S.C. §§ 2201 and 2202. The existence of subject matter jurisdiction presents a question of law reviewed de novo by the court of appeals. Peter Starr Prod. Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir.1986). Even if the district" }, { "docid": "1568533", "title": "", "text": "his equal protection rights in violation of 42 U.S.C. § 1985(3). Haynie’s final claims were based on state civil rights and tort laws. On March 26, 2001, the defendants filed a motion for summary judgment on all claims. On April 16, 2001, the district court granted the defendants’ motion on all counts. On April 20, 2001, Haynie filed a Notice of Appeal and now appeals the district court’s grant of summary judgment in favor of the defendants. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court’s grant of the defendants’ motion for summary judgment. II. On appeal, Haynie asserts that the defendants’ motion for summary judgment was improperly granted on both his 42 U.S.C. § 1983 claims for unlawful search and seizure, excessive force, and conspiracy and his 42 U.S.C. § 1985 claim. He also asserts that his state law causes of action were improperly dismissed. We review a district court’s grant or denial of a motion for summary judgment de novo. Bergt v. Ret. Plan for Pilots Employed, by Markair, Inc., 293 F.3d 1139, 1142 (9th Cir.2002) (citing Lang v. Long-Term Disability Plan of Sponsor Applied Remote Tech., 125 F.3d 794, 797 (9th Cir.1997)). Summary judgment may be granted 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). We view the underlying facts in the fight most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted). We review a district court’s decision whether or not to retain jurisdiction over state law claims after the federal claims are dismissed for an abuse of discretion. Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir.2001). A. We must first determine whether Deputy Mertens had reasonable suspicion to stop Haynie in his van. An unlawful traffic stop may be the basis for a § 1983 action. Bingham v. City of Manhattan Beach, 329 F.3d 723, 730 (9th Cir.2003). “The Fourth Amendment requires only reasonable" }, { "docid": "23327761", "title": "", "text": "alleged a case or controversy. Prasco I, 2007 WL 928669at **5-6. In a footnote, however, the court noted that even if Medlmmune had overruled the reasonable apprehension of suit test, it would still conclude that there was no case or controversy because there was “no definite and concrete dispute that touches the legal relations of these parties.” Prasco I, 2007 WL 928669 at *6 n. 4. Following this court’s decision in Teva Pharmaceuticals USA, Inc. v. Novartis Pharmaceuticals Corp., 482 F.3d 1330 (Fed.Cir.2007), which concluded that Med-lmmune had effectively overruled the reasonable apprehension of suit test, id. at 1339, the district court reconsidered its ruling pursuant to a Rule 59(e) motion, but declined to amend its decision. Prasco II, 2007 WL 1974951 at **3-4. The court concluded that under all the circumstances there was not an Article III case or controversy. Id. Prasco appeals the final judgment of dismissal. We have jurisdiction under 28 U.S.C. § 1295(a)(1). II. The only issue on appeal is whether the facts alleged in this case establish that there is a justiciable case or controversy within the meaning of the Declaratory Judgment Act and Article III of the Constitution. We review issues of jurisdiction de novo. Novartis, 482 F.3d at 1335. A. The Declaratory Judgment Act provides: In a case of actual controversy within its jurisdiction ... any court of the United States, upon the fifing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. 28 U.S.C. § 2201. The Declaratory Judgment Act is not an independent basis for subject matter jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). Rather, it provides a remedy available only if the court has jurisdiction from some other source. Cat Tech LLC v. TubeMaster, Inc., 528 F.3d 871, 879 (Fed.Cir.2008) (citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617 (1937)). Such jurisdiction is limited by Article III of the Constitution," }, { "docid": "6072324", "title": "", "text": "judgment and dismissed the complaint with prejudice, ordered Vanguard to pay costs, and awarded PEAT its attorneys’ fees. In its memorandum opinion, the district court held that it lacked jurisdiction under the Declaratory Judgment Act because there was no objectively reasonable apprehension that PEAT would bring suit against Vanguard for infringing the '659 patent and further held that Judge Morgan’s jurisdiction rulings did not preclude PEAT from challenging the Alabama court’s jurisdiction in the separate action. In .dicta, the district court stated that “even if th[e] court could find an actual controversy and therefore exercise jurisdiction, it would decline to do so.” On appeal, Vanguard argues that the district court erred by finding that Vanguard did not have a reasonable apprehension of suit for infringing the '659 patent. Vanguard seeks review of (1) the finding of a lack of subject matter jurisdiction; (2) the dismissal with prejudice; (3) the award of costs; and (4) the assessment of attorneys’ fees. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). II. DISCUSSION A. Standard of Review We review a district court’s grant of summary judgment de novo, reapplying the standard applicable at the district court. Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1301, 50 USPQ2d 1429, 1434 (Fed. Cir.1999) (citing Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575, 29 USPQ2d 1373, 1377 (Fed.Cir.1994)). Summary judgment is only appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1369 (11th Cir.1998). We draw all reasonable inferences in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Whether the district court had jurisdiction is a question of law that we review de novo. Kanemoto v. Reno, 41 F.3d 641, 643 (Fed.Cir.1994). The determination of whether an actual controversy exists under the Declaratory Judgment Act in a patent case is a question of law that we review de novo. BP Chems. Ltd." }, { "docid": "14990440", "title": "", "text": "International Mulch and Green Edge also argue that Rubber Mulch has no standing in this appeal because it abandoned the claims that were the subject of the appealed orders when it did not respond to the district court’s June 2008 order requesting a status report. International Mulch and Green Edge both further respond that they had no dispute with Rubber Resources. We conclude that the district court erred in dismissing Rubber Mulch’s counterclaims as to the validity and enforceability of the “RUBBERIFIC MULCH” mark, but did not err in dismissing Rubber Resources’ trademark counterclaims. The Declaratory Judgment Act provides the courts with jurisdiction over declaratory judgment actions when there is a justiciable case or controversy. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126-27, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (citing 28 U.S.C. § 2201(a)). When such jurisdiction exists, a court “may declare the rights and other legal relations of any interested party.” 28 U.S.C. § 2201(a) (emphasis added). Thus, we review a court’s legal determination whether there is declaratory judgment jurisdiction de novo, Micron Tech., Inc. v. Mosaid Techs., Inc., 518 F.3d 897, 900 (Fed.Cir.2008), and we review its decision to exercise that jurisdiction for an abuse of discretion, Wilton v. Seven Falls Co., 515 U.S. 277, 286, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). In this case, the court determined that there was no case or controversy, a decision that we review de novo. A controversy exists when “the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” MedImmune, 549 U.S. at 127, 127 S.Ct. 764. The Supreme Court has held that, in the patent infringement context, there is not even a need for a party to have a “reasonable apprehension of suit.” See id. at 132 n. 11,127 S.Ct. 764. In this case, Rubber Mulch’s trademark noninfringement and invalidity counterclaims were pled in response to Green Edge’s trademark infringement claims against it. Thus, there was more than an apprehension of suit from Green" }, { "docid": "10731438", "title": "", "text": "Minn., LLC v. Nat’l Specialty Ins., 675 F.3d 1095, 1098 (8th Cir.2012); see also Vanguard Research, Inc. v. PEAT, Inc., 304 F.3d 1249, 1254 (Fed.Cir.2002) (“The determination of whether an actual controversy exists under the Declaratory Judgment Act in a patent case is a question of law that we review de novo.”). “If the district court resolves disputed factual issues, its findings are reviewed for clear error.” ABF Freight Sys., Inc. v. Int’l Bhd. of Teamsters, 645 F.3d 954, 958 (8th Cir.2011); accord Vanguard, 304 F.3d at 1254. ChemTreat bears the burden to show subject matter jurisdiction existed when it filed its counterclaims. See, e.g., ABF Freight, 645 F.3d at 958; accord Powertech Tech. Inc. v. Tessera, Inc., 660 F.3d 1301, 1306 (Fed.Cir.2011). The Declaratory Judgment Act provides, “In a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a). “The phrase ‘case of actual controversyin § 2201 ‘refers to the type of Cases and Controversies that are justi-ciable under Article III.’ ” Maytag Corp. v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers, 687 F.3d 1076, 1081 (8th Cir.2012) (quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007)). 1. Reasonable Apprehension of Suit The counterclaim defendants moved to dismiss ChemTreat’s counterclaims, arguing the district court “lack[ed] subject-matter jurisdiction over ChemTreat’s claim for a declaratory judgment of non-infringement because the Counterclaim Defendants have not asserted the '244 Patent against ChemTreat or its customers.” The district court concluded subject matter jurisdiction exists and denied the motion, relying principally on two cases from the Federal Circuit, both of which address the relationship between trade secrets and patents. First, in Goodyear Tire & Rubber Co. v. Releasomers, Inc., 824 F.2d 953 (Fed.Cir.1987), after Releasomers filed suit in state court alleging Goodyear had misappropriated trade secrets, the USPTO issued two patents to Releasomers based on the same technology involved in the state action. See id." }, { "docid": "23327762", "title": "", "text": "a justiciable case or controversy within the meaning of the Declaratory Judgment Act and Article III of the Constitution. We review issues of jurisdiction de novo. Novartis, 482 F.3d at 1335. A. The Declaratory Judgment Act provides: In a case of actual controversy within its jurisdiction ... any court of the United States, upon the fifing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. 28 U.S.C. § 2201. The Declaratory Judgment Act is not an independent basis for subject matter jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). Rather, it provides a remedy available only if the court has jurisdiction from some other source. Cat Tech LLC v. TubeMaster, Inc., 528 F.3d 871, 879 (Fed.Cir.2008) (citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617 (1937)). Such jurisdiction is limited by Article III of the Constitution, which restricts federal judicial power to the adjudication of “Cases” or “Controversies.” U.S. Const, art. Ill, § 2; Cat Tech LLC, 528 F.3d at 879. The Declaratory Judgment Act’s requirement of “a case of actual controversy” simply affirms this Constitutional requirement, having long been interpreted as referring to any case and controversy that is justiciable under Article III. See Aetna Life Ins., 300 U.S. at 239-40, 57 S.Ct. 461 (explaining that the phrase “cases of actual controversy” refers “to controversies which are such in the constitutional sense”); see also MedImmune, 127 S.Ct. at 771. Thus, as long as the suit meets the case or controversy requirement of Article III, a district court may have jurisdiction over a declaratory judgment action. Novartis, 482 F.3d at 1340. For there to be a case or controversy under Article III, the dispute must be “definite and concrete, touching the legal relations of parties having ad verse legal interests,” “real and substantial,” and “admi[t] of specific relief through a decree of a conclusive character, as distinguished from an opinion advising" }, { "docid": "11833647", "title": "", "text": "case extends to the standard of review we must apply. Surefoot UT contends that the dis trict court’s dismissal of the case for lack of jurisdiction under the Declaratory Judgment Act should be reviewed de novo, while Sure Foot ND asserts our review may only be for abuse of discretion. To be fair, neither party is exactly incorrect. The Declaratory Judgment Act states in pertinent part that, “[i]n a case of actual controversy within its jurisdiction ..., any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). We have previously observed that this text presents two separate hurdles for parties seeking a declaratory judgment to overcome. See Kunkel v. Cont'l Cas. Co., 866 F.2d 1269, 1273 (10th Cir.1989). First, a declaratory judgment plaintiff must present the court with a suit based on an “actual controversy,” a requirement the Supreme Court has repeatedly equated to the Constitution’s case-or-controversy requirement. See, e.g., Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40, 57 S.Ct. 461, 81 L.Ed. 617 (1937) (“The Declaratory Judgment Act of 1934, in its limitation to ‘cases of actual controversy,’ manifestly has regard to the constitutional provision and is operative only in respect to controversies which are such in the constitutional sense.”); MedImmune, 127 S.Ct. at 771 (same); see also infra Part III (citing additional authority); U.S. Const. Art. III § 2 (“The judicial Power shall extend to all Cases ... [and] Controversies.... ”). Second, even where a constitutionally cognizable controversy exists, the Act stipulates only that district courts “may”—not “must”—make a declaration on the merits of that controversy; accordingly, we have held that district courts are entitled to consider a number of case-specific factors in deciding whether or not to exercise their statutory declaratory judgment authority. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 982-83 (10th Cir.1994) (White, J.) (stating that “the district court is not obliged to entertain every justiciable claim" }, { "docid": "14124276", "title": "", "text": "covenant not to sue.” The district court agreed, stating from the bench that “[t]here’s a covenant not to sue on the '941 so there’s not going to be any loss, there’s no threat of lawsuit.” Transcript of Hearing on Mu tion to Dismiss at 31 (May 30, 2007) (emphasis added). On this basis, the district court ruled that there was no Article III controversy and granted Forest’s motion to dismiss. Notably, there is no indication in the record that the district court considered either the Supreme Court’s MedImmune decision or this court’s Novartis decision when making this ruling. III. ANALYSIS A district court’s dismissal of a declaratory judgment action for lack of jurisdiction presents a question of law that this court reviews de novo. Novartis, 482 F.3d at 1335. Our starting point in analyzing Caraco’s appeal is the Declaratory Judgment Act, 28 U.S.C. § 2201(a), under which Caraco filed this suit. The relevant text of the Act provides: In a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. 28 U.S.C. § 2201(a). It is well established that the phrase “actual controversy” in § 2201(a) includes any controversy over which there is Article III jurisdiction. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40, 57 S.Ct. 461, 81 L.Ed. 617 (1937) (noting that “the word ‘actual’ is one of emphasis rather than of definition”). In addition, with respect to declaratory judgment actions brought by Paragraph IV ANDA filers against NDA holders to establish noninfringement or invalidity of Orange-Book-listed patents, Congress has specifically granted federal courts subject matter jurisdiction “to the extent consistent with the Constitution.” 35 U.S.C. § 271(e)(5). Thus, federal courts have subject matter jurisdiction over such actions to the extent that they present an Article III case or controversy. See Novartis, 482 F.3d at 1337. In MedImmune, the Supreme Court reaffirmed the proper standard for determining whether a declaratory judgment" } ]

[ { "docid": "22657507", "title": "", "text": "requirement that a COA may issue only upon the “substantial showing of the denial of a constitutional right,” the State contends that no appeal can be taken if the District Court relies on procedural grounds to dismiss the petition. According to the State, only constitutional rulings may be appealed. Under this view, a state prisoner who can demonstrate he was convicted in violation of the Constitution and who can demonstrate that the district court was wrong to dismiss the petition on procedural grounds would be denied relief. We reject this interpretation. The writ of habeas corpus plays a vital role in protecting constitutional rights. In setting forth the preconditions for issuance of a COA under § 2253(c), Congress expressed no intention to allow trial court procedural error to bar vindication of substantial constitutional rights on appeal. Our conclusion follows from AEDPA’s present provisions, which incorporate earlier habeas corpus principles. Under AEDPA, a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 12253(c) (1994 ed., Supp. III). Except for substituting the word “constitutional” for the word “federal,” § 2253 is a codification of the CPC standard announced in Barefoot v. Estelle, 463 U. S., at 894. Congress had before it the meaning Barefoot had given to the words it selected; and we give the language found in § 2253(c) the meaning ascribed it in Barefoot, with due note for the substitution of the word “constitutional.” See Williams v. Taylor, ante, at 434. To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, 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.’ ” Barefoot, supra, at 893, and n. 4 (“sum[ming] up” the “ ‘substantial showing’ ” standard). Where a district court has rejected the constitutional claims on the merits, the showing required to" } ]

[ { "docid": "11683530", "title": "", "text": "This case arises on appeal from the United States District Court for the Southern District of Texas, Houston Division, Judge Ewing Werlein, Jr. presiding. The State moved for summary judgment. On March 31, 2003, the district court granted the State’s motion for summary judgment denying Smith relief without an evidentiary hearing and dismissed the writ petition in an unpublished decision. Smith v. Cockrell, No. H-00-1771 (S.D.Tex. filed March 31, 2003). The district court also denied Smith’s COA request sua sponte. On September 22, 2003, Smith timely filed his appeal, requesting a COA from this court. Standard of review Because Smith’s federal petition for habeas review was filed on May 30, 2000, we review it under the standards articulated in the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254. To obtain a COA, the petitioner must make a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, the petitioner must demonstrate “that reasonable jurists could debate whether [] the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). In determining whether to grant a COA, our inquiry is limited to a threshold examination that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A full consideration of the merits is not required, nor permitted, by § 2253(c)(2). Id. The fact that a COA should issue does not mean the petitioner will be entitled to ultimate relief, rather “the question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. Accordingly, we must be mindful that “a claim can be debatable even though every jurist of reason might agree, after the COA" }, { "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": "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": "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": "7767511", "title": "", "text": "Finally, it found that Elizalde’s due process rights were not violated when the trial court instructed the jury that it could consider evidence of Elizalde’s flight as evidence of guilty knowledge. See Bailey v. Procunier, 744 F.2d 1166, 1168 (5th Cir.1984); see also United States v. Lopez, 979 F.2d 1024, 1030 (5th Cir.1993). The district court refused to grant a COA. Elizalde now applies to this Court for a COA to appeal the following issues: 1) whether the district court properly applied a procedural bar to his fourth, fifth and sixth claims and whether he is entitled to habeas relief on the merits of those claims; 2) whether the district court erred in finding that the Constitution does not require the trial court to instruct the jury that if sentenced to life in prison he would not be eligible for parole for forty years. II Before Elizalde can appeal the district court’s ruling he must first obtain a COA. See 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (COA is a “jurisdictional prerequisite” without which “federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). To obtain a COA, Elizalde must make a “substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). To do so he must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. To obtain a COA for the claims which the district court found procedurally barred, Elizalde must, in addition to establishing the debatability of the underlying constitutional claim, demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural rulings as to those claims. See Slack, 529 U.S. at 484, 120 S.Ct. 1595; Hernandez v. Johnson, 213 F.3d 243, 248" }, { "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": "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": "13139588", "title": "", "text": "only in the event that it found that he actually attacked Vick. The court did not instruct the jury on a law of the parties theory of liability. The jury found Wright guilty, and he was sentenced to death. Wright’s conviction was affirmed on direct appeal to the Texas Court of Criminal Appeals (“TCCA”). Wright v. State, 28 S.W.3d 526 (Tex.Crim.App.2000). He petitioned the state court for a writ of habeas corpus. The state trial judge adopted the State’s proposed findings of fact and conclusions of law in their entirety and recommended that relief be denied. The TCCA adopted the trial court’s findings of fact and conclusions of law and denied relief. Wright petitioned the United States District Court for the Northern District of Texas for a federal writ of habeas corpus. A magistrate judge recommended denying relief on all of Wright’s claims. Wright v. Dretke, 3:01-CV-0472, 2004 WL 438941 (N.D.Tex. Mar.10, 2004). The district court judge adopted the magistrate judge’s recommendation and denied the petition. II We issue a certificate of appealability only when the movant has made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(e)(2). This requires him to “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). At this stage, we are not permitted to give full consideration of the factual or legal bases in support of the claim. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Instead, we merely conduct an overview of the claims and a general assessment of their merits. Id. The movant’s arguments “must be assessed under the deferential standard required by 28 U.S.C. § 2254(d)(1).” Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004); see Miller-El, 537 U.S. at 348-50, 123 S.Ct. 1029 (Scalia, J., concurring) (arguing that a court must consider 28 U.S.C. § 2254(d)’s deferential standard of review when ruling on motion for COA). A federal court may not issue a" }, { "docid": "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": "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": "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": "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": "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": "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": "16435187", "title": "", "text": "post-AEDPA law governs the right to appeal. Id. Kunkle filed a notice of appeal in the instant case on November 1, 2002. Therefore, the AEDPA amended version of 28 U.S.C. § 2253 controls Kunkle’s right to appeal. Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first obtain a COA from a circuit judge. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Until a COA has been issued, a federal appeals court lacks jurisdiction to rule on the merits of a habeas appeal. Miller-El, 123 S.Ct. at 1039. To obtain a COA, the petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. 2253(c)(2). To make such a showing, the petitioner must demonstrate “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack, 529 U.S. at 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). The question of whether a COA should issue is a threshold inquiry that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El, 123 S.Ct. at 1039. A full consideration of the merits is not required, nor permitted, by § 2253(c). Id. The fact that a COA should issue does not mean that the petitioner will be entitled to habe-as relief because the “question is the de-batability of the underlying constitutional claim, not the resolution of that debate.” Id. at 1042. Under pre-AEDPA standards of review, this court will review the legal conclusions of the district court de novo and the state court’s findings of fact for clear error. See Soffar v. Cockrell, 300 F.3d 588, 592 (5th Cir.2002) (en banc). This court must accord a presumption of correctness to all findings of fact if they are supported by the record. Id.; see 28 U.S.C. § 2254(d)" }, { "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": "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": "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": "22276151", "title": "", "text": "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 342, 123 S.Ct. at 1042. That means a petitioner is not required to demonstrate entitlement to appellate relief in order to be given an opportunity to pursue it. Still, the certificate of appealability requirement is not a toothless one, and it should be applied with its purpose in mind, which is to separate out those appeals that deserve more careful attention from the ones that do not. More than the absence of frivolity or the presence of good faith is required for a petitioner to clear this hurdle. Id. at 335-38, 123 S.Ct. at 1039-40. Of particular relevance to the three cases we have before us, each of which involves Rule 60(b) procedural issues in addition to merits issues, is the Slack decision. In that case the district court had denied the habeas petition on procedural grounds without reaching the underlying constitutional claim. Slack, 529 U.S. at 484, 120 S.Ct. at 1604. The Supreme Court held that in those circumstances a certificate of appealability should issue only if the petitioner makes both a substantial showing" }, { "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" } ]